Karnataka High Court
The Managing Director Anr vs Siddappa Revanappa Harijan Ors on 17 September, 2018
Bench: L.Narayana Swamy, K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA, KALABURAGI
DATED THIS THE 17TH DAY OF SEPTEMBER, 2018
:PRESENT:
THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
WRIT APPEAL NO.200419/2014 [L-KSRTC]
BETWEEN
1. THE MANAGING DIRECTOR
KSRTC, CENTRAL OFFICE
SHANTINAGAR, DOUBLE ROAD
BENGALURU - 560 032
2. THE DIVISIONAL CONTROLLER
KSRTC BIJAPUR DIVISION
BIJAPUR, THE BIJAPUR DIVISION
COMES UNDER NEKRTC HENCE
THE APPELLANTS ARE REP. BY
ITS CHIEF LAW OFFICER
GULBARGA - 585 101 ... APPELLANTS
(BY SRI. SUDHIR SINGH R. VIJAPUR, ADV.)
AND
1. SRI. SIDDAPPA REVANAPPA HARIJAN
AGE 54 YEARS, OCC: NIL
AT POST: GADISOMANAL
TQ: MUDDEBIHAL
DIST: BIJAPUR - 586 245
2. SRI. NAGAPPA BHIMAPPA JALWADI
AGE 46 YEARS, OCC: NIL
2
R/O YALWAR, AT POST: YALWAR
TQ: BASAVAN BAGEWADI
DIST: BIJAPUR - 586 311
3. BASAPPA
S/O SANGAPPA BADIGER
AGE 54 YEARS, OCC: NIL
AT POST: SHIVAPUR
TQ MUDDEBIHAL
DIST. BIJAPUR - 586 245
4. KALAPPA
S/O DUNDAPPA BEDAR
AGE 52 YEARS, OCC: NIL
AT POST:SATALGAOV, TQ: INDI
DIST: BIJAPUR-586 345
5. SADASHIVA
S/O BHIMAPPA SIROL
AGE 43 YEARS, OCC: NIL
AT POST: HONNNUTAGI
TQ BIJAPUR, DIST: BIJAPUR-586 105
6. SHIVAPUTRAPPA
S/O MALAPPA NAIKODI
AGE 43 YEARS, OCC:NIL
AT POST:LACHANNA, TQ:INDI
DIST:BIJAPUR - 586 345
7. LAXMAPPA
S/O KAMANNA KAMBLE
AGE 49 YEARS, OCC:NIL
AT POST: SIRNAL, TQ BIJAPUR
DIST: BIJAPUR - 586 105
8. PARASAPPA DHARMAPPA HARIJAN
AGE 45 YEARS, OCC:NIL
AT POST:HIRUR, TQ: MUDDEBIHAL
DIST:BIJAPUR-586 245 ... RESPONDENTS
(BY SRI. ANANTH P. SAVADI, ADV.)
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THIS WRIT APPEAL IS FILED UNDER SECTION 4
OF THE KARNATAKA HIGH COURT ACT, PRAYING TO
ALLOW THE APPEAL AND SET ASIDE THE ORDER
DATED 24.04.2013 MADE IN W.P.NOS.84311-
84315/2010 AND 80086-80089/2012 (L-K) WHEREIN
THE AWARD PASSED BY THE LABOUR COURT
BIJAPUR IN REF NO.48/1998, WAS REVERSED.
THIS WRIT APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS AT KALABURAGI BENCH ON
27.08.2018 COMING ON FOR 'PRONOUNCEMENT
OF ORDER' AT BENGALURU BENCH THIS DAY, K.N.
PHANEENDRA, J. DELIVERED THE FOLLOWING:
JUDGMENT
The appellants - KSRTC have preferred this appeal against the order dated 24.4.2013 passed by the learned Single Judge of this Court in Writ Petition Nos.84311-84315/2010 and in Writ Petition Nos.80086-80089/2012 (L-KSRTC).
2. Before adverting to the grounds urged in the Memorandum of Appeal, it is just and necessary for us to have the brief factual matrix of the case: 4
The respondents herein and other employees who claims themselves to be the Conductors and Drivers appointed by the appellant - KSRTC, have claimed for their re-instatement and regularization of their services which was refused by the Management. Therefore, a Claim Petition u/s.10 of the Industrial Disputes Act, 1947 was made. The same was referred to the Labour Court for adjudication and a Reference number has been registered, by the Government of Karnataka through Labour Department vide order dated 5.3.1998 in Reference No.48/1998 before the Labour Court. As many as 32 claimants were there in the said petition.
3. It is the claim of the respondents herein and others that the appellants with due authorization has made appointments of the respondents as Conductors since 1992 upto 1996 on temporary basis (on daily wage basis) for 5 Jathra/fare purpose when the crowd was usually on the higher side. However, by projecting this as a reason, the appellants have kept large vacancies and extracted the regular work and even double the work of Conductors from the respondents and others. All the conductors so appointed have been allowed to continue in employment, the services of Badli conductors have not been terminated that they were also engaged on temporary basis as that of the claim and subsequently, some of them were absorbed. Earlier, the conductors were selected to the unfilled quota in the Corporation. Most of the respondents have worked during the month of January, 1996 to July, 1996 continuously without brake, they were compelled to discharge all the regular duties and not only for Jathra duties, they have worked double the duties and even without weekly offs, holidays and national festivals and etc., But subsequently, the appellants have suddenly stopped the claimants from discharging their duties 6 by telegraphic orders and they were stopped working from July, 1996. The appellants have again called for fresh list from the employment exchange for appointing conductors. The claimants, who have aggrieved, have filed Writ Petitions before the High Court of Karnataka, Bengaluru. However, the claimants felt that their rights are properly protected under the Industrial Disputes Act, they have withdrawn the Writ Petitions by filing an application and the same was referred to the Labour Court.
4. The appellants have filed written statement before the Labour Court stating that the claimants are not at all selected by the committee and they have failed in Trade Test. Therefore, they have no right to get any relief as sought for. The claimants were taken only on daily wage basis during Jathra time, since there was ban of recruitment by the Government of Karnataka, for a period of 15 days 7 on daily wage basis at the rate of Rs.46/- per day and an undertaking has been given by them that they will not claim any other relief. The claimants have only worked for 32 days. Therefore, they have no right to get any relief. As per the undertaking, their services are terminated. Therefore, Section 25F of Industrial Disputes Act also not applicable as there was no retrenchment as contended by them. As they have not worked for more than 240 days, they are not entitled for any relief before the court.
5. After due contest, the Labour Court at the initial stages framed two important points for consideration:
(1) Whether the Management -
Divisional Controller KSRTC, Bijapur is justified in refusing employment to the workman with effect from 1st July, 1996?
(2) If not for what reliefs the claimants are entitled to?
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6. The Labour Court In connection with the above, the appellants - Corporation examined one witnesses MW-1 Shivalingappa as and produced Exhibits M1 to M49 and he was cross examined partly. But he did not appear for further examination later. One claimant was examined as WW-1 and got marked exhibits W1 to W68. After considering the oral and documentary evidence on record and giving a detailed finding, holding that the respondents are entitled for re-instatement as they were treated as workmen and they were not properly retrenched from service. As such, the claim of the claimants were allowed by the Labour Court in part and the appellants herein were directed to reinstate the claimants into the same post which they were holding at the time of dispensing their services, but it is specifically held that they are not entitled for any other benefits. 9 The labour court has passed the said order vide judgment dated 4.9.2000.
7. As many as 32 claim petitions were disposed of by the Labour court. However, the Writ Petitions filed by the appellants before this court challenging the said order in WP No.22242/2001 (L- K) pertaining to one Babu Rao Danappa Kodahonna and the same was allowed by judgment dated 19.8.2004, remitting the matter to the Labour Court for fresh consideration directing the Labour Court to permit the appellant to produce the documents and permit the parties to adduce such evidence as they may choose to adduce and thereafter consider the arguments of the respective parties and dispose of the reference on merits in accordance with law within six months from the date of communication of the said order.
8. After remand, MW2 was examined and Exhibits M-50 to P-53 were got marked and Exhibit 10 W-68 was also got marked and after hearing both the parties, the Labour Court has dismissed the claim of the claimants (respondents herein) vide order dated 30.9.2005.
9. Being aggrieved by the same, the respondents herein have preferred Writ Petition Nos.84311-84315/2010 and 80086-80089/2012 [L- KSRTC] and this court vide Order dated 24.4.2013, allowed the Writ Petitions of the respondents herein and also the re-instatement given to other 23 conductors by the Labour Court in Reference No.48/1998 was also up-held by totally setting aside the order passed by the Labour court for the second time vide order dated 30.09.2005. Therefore, by virtue of the order passed by this court, the original order passed by the Labour Court in Reference No.48 of 1998 dated 4.9.2000 was virtually restored except one person by name Baburao Danappa Kodahonna. Being aggrieved by 11 the order passed by the writ court, the present appeal is preferred.
10. The appellants' counsel has contended that the respondents were not appointed either as temporary or permanent employees and they were only appointed for Jathra purpose on daily wage basis and they did not even worked for 240 days. Therefore, their appointment cannot be regularized. It is contended that the Corporation has filed 32 separate Writ Petitions against the orders of the Labour Court in Reference No.48/1998 and the petitioners have concealed the fact before the learned Single Judge which has resulted in passing the order as stated above. But those Writ Petitions, orders have not been produced before this court or before the writ court by the appellant and there is no reference about them either in the earlier Writ Petition or in the subsequent Writ Petition filed by the claimants. Even before this court also in these 12 proceedings, no such orders have been produced by the appellants.
11. It is further contended by the appellants that during the pendency of the writ appeal, the Managing Director, NE-KRTC on 23.8.2018 has constituted a committee for exploring the possibility of settlement in the matter and upon deliberation, the committee expressed that there cannot be any relief granted in favour of the claimants. Therefore, they requested the court to dispose of the appeal on merits.
12. Per contra, the learned counsel for the respondents strenuously contended that the Labour Court without any additional evidence could not have reversed its own judgment passed earlier in the subsequent proceedings. Earlier order passed by the Labour Court on 4.9.2000 is a very detailed order considering all the grounds urged by the appellants and held that the termination of the 13 claimants was not proper and therefore, ordered for re-instatement. In the absence of any additional evidence or additional documents to over turn the previous judgment, the subsequent judgment would not stand to the judicial scrutiny. Therefore, he has submitted that the order passed by the labour Court for the second time has been rightly set aside by this court in the writ proceedings. Therefore, there is no room to interfere with the order passed by the learned single Judge which are impugned in this Writ Appeal.
13. It is also contended that, the learned Single Judge has considered all the relevant materials and has come to a definite conclusion that only claimant by name Babu Rao Danappa Kodahonna is shown to have not worked for 240 days, but the management has failed to prove the other claimants did not work for 240 days. Therefore, dismissed the Writ Petition so far as the 14 said Babu Rao Son of Danappa Kodahonna, is concerned and allowed the Writ Petitions so far as the respondents including the other 23 conductors are concerned. Therefore, the said orders stand to the logic on facts and law. Therefore, the same is liable to be confirmed.
14. Having heard the arguments of the learned counsels, we have carefully re-looked into the entire materials on record.
15. At the first instance, when the labour court has disposed of the matter, it has considered all the documents produced before the court i.e., Exhibits M1 to M49 and also Exhibits W1 to W67 and also the evidence of MW1 and WW1. The Labour Court has observed at the first instance that a similar dispute arose in KID No. 88/1996, an order was passed by the Labour Court on 12.3.1998 which was challenged by the Corporation before the High Court in Writ Petition No.29653/1998 which was 15 dismissed on 21.7.2000. The same was challenged again by the Corporation in Writ Appeal which was reported in ILR 2000 KAR 2156, between KSRTC & Another Vs. B.B. Tabusi & Others, wherein the Division Bench has directed the Corporation to re- instate the respondents therein in the same post which they were holding at the time of dispensing their services, however, the workmen were held to be not entitled for any other benefits. The said decision has logically concluded as the Corporation has not further gone up in appeal. The Labour Court also considering the provisions of Section 25H and 25F of the Industrial Disputes Act, has concluded that the claimants are entitled for re- instatement but they are not entitled for any other benefits.
16. After remand in WP No.22242/2001 by an order dated 19.08.2004, the same Labour Court has taken a different view only on the ground that 16 the claimants have not completed 240 days of service continuously, therefore, they are not entitled for the relief. At paragraph 12, it is observed that, the Labour Court only relied upon the documents marked at M1 to M48 and held that the claimants have not led any further evidence in the case. However, the subsequent documents marked before the court i.e., Ex.P-50 to 53 and also the further evidence of MW2 have not been relied upon by the Labour Court for the purpose of taking a different view from that of the earlier view taken by the Labour Court. Therefore, it goes without saying that on the same set of facts, evidence of both oral and documentary, the Labour Court has taken different view. Whether it is permissible under law is also an important legal point that has to be taken into consideration.
17. In the above said set of facts and circumstances of the case, it is worth to refer a 17 decision of the Hon'ble Apex Court reported in AIR 2009 SCW 5779 between Biecco Lawrie Ltd., & Anr. Vs. State of West Bengal and Another. At paragraph 24, the Hon'ble Apex Court has specifically dealt with the similar set of facts and circumstances of the case laid down a principle, the same is extracted hereunder:
"24. The learned Single Judge also misused the power vested in him by remanding back the matter to the Industrial Tribunal for reconsideration when the charges were found to be proved. The Tribunal also erred in reversing its own decision on the same evidence for which we fail to see as to how the same Forum can appreciate the same evidence differently. The arguments advanced by the respondent that there was violation of the principles of natural justice does not stand true and if it does it was duly redressed by the fresh inquiry conducted by the 18 Tribunal after its order dated 9th October, 1990."
18. In view of the above said observation made by the Hon'ble Apex Court, the Labour Court earlier on considering the same evidence, came to the conclusion that the claimants are entitle for reinstatement. Without there being any new evidence, the same forum cannot appreciate the same evidence in a different manner. Applying the above said principle to this particular case, we are of the opinion that different view taken by the Labour Court on the same evidence, same set of facts and circumstances of the case is unwarranted, therefore, the order passed by the Labour Court for the second time has been rightly turned down by the learned Single Judge in the Writ Petitions impugned in this appeal.
19. Under the above said facts and circumstances of the case, we do not find any strong reasons to interfere with the order of the 19 learned Single Judge. Hence, the appeal is devoid of merits and the same is liable to be dismissed and accordingly dismissed. Further, we confirm the Order passed by the learned Single Judge in the impugned Writ Petitions, pertaining to the respondents and other 23 claimants.
Sd/-
JUDGE Sd/-
JUDGE PL*