Karnataka High Court
The Management Of vs M Shivarama on 27 July, 2018
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 27TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT PETITION NOS.33760-33764 OF 2010(L-RES)
BETWEEN:
THE MANAGEMENT OF
MYSORE CEMENTS LTD.,
(NOW KNOWN AS HEIDELBERG
CEMENTS INDIA LTD.,)
AMMASANDRA - 572 211,
TURUVEKERE TALUK,
TUMAKURU DISTRICT,
REPRESENTED BY ITS
GENERAL MANAGER-HR. ... PETITIONER
(BY SRI K.KASTURI, SENIOR COUNSEL FOR
SRI D.LEELAKRISHNAN, ADVOCATE)
AND:
1. M.SHIVARAMA
AGED ABOUT 41 YEARS,
S/O MUDALAGIRIYAIAH,
R/AT DANDINASHIVARA POST,
TURUVEKERE TALUK,
TUMAKURU DISTRICT.
2. CHANDRAIAH
S/O CHIKKANNA,
AGED ABOUT 39 YEARS,
2
ROPEWAY COLONY,
HADAVANA HALLI POST,
TURUVEKERE TALUK.
3. GOUSE PEER
S/O MADHAR SAB,
AGED ABOUT 29 YEARS,
MCL COLONY,
AMMASANDRA,
TURUVEKERE TALUK.
4. M.CHANDRASEKHAR RAO
S/O B.J.MALLOIJI RAO,
AGED ABOUT 36 YEARS,
MCL COLONY,
AMMASANDRA.
5. D.B.NAGARAJ
S/O BOJANNA,
AGED ABOUT 36 YEARS,
DANDINASHIVARA POST,
TURUVEKERE TALUK. ... RESPONDENTS
(BY SRI S.B.MUKKANNAPPA, ADVOCATE FOR R1 TO R5)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 OF THE CONSTITUTION OF INDIA PRAYING
TO CALL FOR THE RECORDS IN REFERENCE NO.51 OF
2007 ON THE FILE OF THE PRESIDING OFFICER, THE
PRINCIPAL LABOUR COURT, BENGALURU AND QUASH THE
AWARD DATED 24.07.2010 (ANNEXURE-A).
*****
THESE WRIT PETITIONS COMING ON FOR HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
The petitioner Company has one of its factories situated at Ammasandra in Tumakuru District for production of cement. It has a number of employees on its list including badli workers. In the said factory there was a Co-operative Society which was promoted and managed by the employees of the Company themselves. That the petitioner Company has nothing to do with the Society except that it was functioning in the premises of the factory. That it was a separate and distinct entity. That the respondents were working in the said Society. By the order dated 29-9-1997 the State of Karnataka ordered the Society to be liquidated under the provisions of the Karnataka Co-operative Societies Act and the Rules. In the process of winding up of its affairs, these workers continued to work in the said factory till then. The respondents approached the petitioner Company for providing employment to them, in the factory pleading hardship due to loss of employment. The petitioner 4 Company considering their case sympathetically, agreed to consider their plea on humanitarian grounds, provided the workmen resigned their jobs and thereafter applied to the said Company. Thereafter the petitioner Company appointed them as badli workers on temporary basis in November, 2002. They were provided with unskilled jobs, whenever the Company required them. There was no continuous employment to them. None of them rendered continuous service, much less 240 days. Due to the heavy loss sustained, the Company was before the BIFR. A voluntary retirement scheme was introduced by the petitioner Company. Many of its employees opted out of service, by accepting the VRS benefits. 230 permanent employees and 117 casual and badli employees accepted the VRS scheme. 18 casual and badli workers did not opt for the VRS and respondents 1 to 5 are among those persons. The Company due to its precarious position, did not provide work to them. However, their names continued to be retained in the baldi list of the Company. Since on 5 the ground that they were terminated from service, the respondents raised an industrial dispute under Section 10(1)(c) and (d) of the Industrial Disputes Act. By the impugned order, the same was allowed. The petitioner was directed to provide work to the respondent workmen and to pay wages as well as 50% of the back wages from 25-5-2007, till they are provided with work. Questioning the same, the management has filed these petitions.
2. Sri K.Kasturi, learned Senior counsel appearing for the petitioner's counsel, contends that the order passed by the Labour Court is erroneous on various grounds. Firstly, is the fact that the respondents - workmen are badli workers. They were not in the regular list of the Company. They were being employed as and when required. Therefore, the question of reinstatement and paying back wages does not arise for consideration. In support of his contention he relies on the decision in the case of THE MANAGEMENT OF MAHADEV TEXTILE MILLS, HUBLI vs. THE ADDITIONAL INDUSTRIAL TRIBUNAL, 6 BANGALORE AND ANOTHER reported in 1976 KLJ 813. He submits that badli employees are not entitled for the relief granted. He further contends that the question of denying them the work would not arise for consideration. That the Company due to its precarious situation was declared as sick. There was no work to be offered to them. Therefore, the question of retrenchment does not arise at all.
3. It is further submitted that in identical circumstance with reference to some other workmen, the Labour Court had passed an order rejecting the plea of the workmen. Questioning the same, the workmen had filed writ petition No.12725 of 2010 and connected matters. By the order dated 18-11-2010, the learned Single Judge allowed the writ petitions and granted relief to the workmen. Questioning the same, the very petitioners, had filed writ appeal Nos. 53 to 59 of 2011. The Division Bench of this Court, by its order dated 8-4-2013 allowed the appeals, set aside the order of the learned single Judge 7 and held that in case any vacancy arose, the respondents therein would be given preferential employment. Hence, he pleads that on this issue also, the petitions require to be allowed.
4. The same is disputed by the learned counsel appearing for the respondents. The respondents contend that they were retrenched from service even though they were on the rolls of the petitioner Company. That only because they did not accept the Voluntary Retirement Scheme, they have been retrenched. Therefore, the Labour Court was justified in passing this impugned order. He further pleads that the subject matter in dispute in the earlier proceedings before this court, are different on facts and they cannot be made applicable herein. Hence, he pleads that the petitions be dismissed.
5. Heard learned counsels.
8
6. The Labour Court while considering the plea of both the parties, was of the view that there was no employment to these workmen and their services are no more required in the factory with effect from the particular date. Therefore, when their services are not terminated, naturally they are deemed to be in service. The findings recorded by the Labour Court, in my considered view is erroneous. The specific case of the management is that there was no employment available in the factory to be given to the workmen. That the petitioner Company was declared as a sick Company. It was already before the BIFR. It had suffered a heavy loss. Therefore, the Company had decided to down size its employees and therefore a Voluntary Retirement Scheme was propounded. That there were workmen in different Departments. Out of them 146 have accepted the voluntary retirement. Proposing the voluntary retirement scheme was also not necessary. It was propounded only in order to help the workmen, as far as possible. It is 9 under these circumstances, considering that the respondent workmen were not retrenched from their service in view of absence of any work in the factory, badli workmen were not given any work. Therefore, it cannot be said that there was retrenchment as contended by the respondents.
7. So far as the Judgment of this Court is concerned, the same would stand squarely applicable to the issue on hand. The petitioners herein were the very appellants before the Division Bench therein. The Division Bench having considered the fact that the Company was declared sick and that the badli workmen were not given work, since there was no work to be given to them, set aside the order passed by the learned Single Judge. However, while doing so, it was observed that in case, any employment arose in the said factory, then preference is to be given to the respondents therein. The order of the Division Bench was challenged by the workmen before the 10 Hon'ble Supreme Court in SLP (Civil) CC No.7188-7193 of 2014. By the order dated 7-5-2014, the SLPs were dismissed. Therefore, on this ground also, I do not find any ground to sustain the order of the Labour Court.
Under these circumstances, the petitions are allowed. The order dated 24-7-2010 passed by the Principal Labour Court, Bengaluru, in Reference No.51 of 2007 is set aside.
SD/-
JUDGE Rsk/-