Karnataka High Court
Karnataka State Road Transport ... vs The General Secretary on 16 January, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.25060/2009 (L-KSRTC)
BETWEEN:
1. KARNATAKA STATE ROAD
TRANSPORT CORPORATION,
CENTRAL OFFICES,
K.H. ROAD, SHANTHI NAGAR,
BANGALORE.
REPRESENTED BY ITS CHIEF LAW OFFICER.
2. THE CHIEF PERSONNEL MANAGER,
K.S.R.T.C., CENTRAL OFFICE,
K.H. ROAD, SHANTHINAGAR,
BANGALORE-27.
... PETITIONERS
(BY SRI B.L. SANJEEV, ADVOCATE)
AND:
THE GENERAL SECRETARY,
KSRTC STAFF AND WORKERS FEDERATION,
NO.6, SIRUR PARK ROAD,
SESHADRIPURAM,
BANGALORE-20.
... RESPONDENT
(BY SRI A.J. SRINIVASAN, ADVOCATE)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE AWARD PASSED BY THE I ADDITIONAL
LABOUR COURT, BANGALORE DATED 12.03.2009 IN REF
NO.113/2006 (OLD NO.1/2004) PRODUCED AT ANNEXURE-
C.
THIS WRIT PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner-Corporation is before this Court for a writ of certiorari to quash the Award dated 12.03.2009 made in Reference No. 113/2006 (Old No. 01/2004) on the file of the I Additional Labour Court, Bangalore and for other reliefs.
2. It is the case of the petitioners that respondent (H.S. Srinivasa Murthy) was appointed on 30.11.1989 as Junior Assistant in BMTC. By an order dated 06.07.1998, he was transferred from Computer Section of BMTC to BMTC Depot No.14 on administrative grounds and was relieved on 09.07.1998. Again, he was transferred to KSRTC, Bellary Division by an order dated 11.01.1999. But, later, on the request made by the workman to the petitioners to retransfer 3 him from KSRTC Bellary division to BMTC on the ground that his wife is a State Government servant in the Health Department, he was re-transferred to Bangalore Central Division, KSRTC on 09.04.1999. The said order of transfer stipulated a condition that as per Circular No.844 dated 16.11.1991 of the Petitioner - Corporation, the workman gets seniority from the date of his report to duty at Bangalore Central Division. The workman without raising any objection to the said condition, reported for duty at the transferred place. Thereafter, the respondent raised a dispute, praying to protect his seniority from the date of his joining service on 30.11.1989 in BMTC at Bangalore. The Government of Karnataka, vide order dated 20.12.2003, referred the dispute between the parties to the III Additional Labour Court, Bangalore for adjudication, which came to be registered as Ref. No.1/2004 and thereafter, by notification dated 29.11.2005 of Government of Karnataka, the said case was transferred to I Additional Labour Court, Bangalore, wherein it was registered as Ref. No.113/2006. Pursuant to which, the 4 respondent filed his claim statement and the petitioners filed their Counter statement.
3. Before the Labour Court, the petitioners examined their Administrative Officer as MW1 and got marked the documents - Exhibits M-1 to M-7 on their behalf. The workman was examined as WW-1 and got marked Exhibit Nos.W-1 to W-11 on his behalf.
4. The Labour Court, considering the entire material on record, by the impugned Award dated 12.03.2009, accepted the reference and held that the workman is entitled to get his original seniority restored with consequential benefits in Bangalore Central Division of KSRTC. Hence, the present petition is filed.
5. The respondent has not filed any objections to the present writ petition.
5
6. I have heard the learned counsel for the parties to the lis.
7. Sri B.L. Sanjeev, learned counsel for the petitioner - Corporation vehemently contended that the impugned Award passed by the Labour Court is contrary to the material on record. He further contended that as per Exhibit M-4, on the request made by the respondent on 18.1.1999, the transfer order came to be passed on 09.04.1999. Therefore, the respondent became junior to the junior-most in the seniority list at the transferred place in terms of Circular dated 16.11.1991. He further contended that when the transfer of the workman was made, Regulation 13(4)(c) of Karnataka State Road Transport Corporation (Cadre and Recruitment) Regulations 1982 was applicable. Therefore, the petitioner Corporation placed the respondent in the bottom of the seniority list in Bangalore Central Division. The same is in accordance with law.
8. He further contended that there was a delay of four years in raising the dispute before the Tribunal and 6 absolutely no reasons are assigned for the delay and therefore the Tribunal was not justified in passing the impugned Award. Hence he sought to set aside the impugned award passed by the Labour Court.
9. In support of his contentions, Sri B.L. Sanjeev relied upon the decision of the learned single judge of this court in case of D. Honnaiah vs. The Managing Director in W.P No. 47590/2011 disposed of on 16.04.2013 and the decision of the Hon'ble Supreme Court in the case of K.P. Sudhakaran and another vs. State of Kerala and others made in Appeal (Civil) No. 9527 of 2003 dated 11.05.2006.
10. Per contra, Sri. A.J. Srinivasan, learned counsel for the respondent/workman sought to justify the impugned Award passed by the Labour Court and strenuously contended that the respondent never filed an application for transfer and never stated in the representation that he will accept the seniority as junior to the junior-most in the transferred place, foregoing ten years of service and the 7 Corporation does not dispute the fact that the respondent has worked in BMTC for 10 years.
11. Learned counsel for the respondent/workman further contended that the respondent was transferred to Bellary Division on 09.04.1999. The workman issued legal notice to the petitioner - Corporation on 22.02.1999 as per Ex.W10 and subsequently given representation on 26.04.1999 as per Ex.W9 and thereafter approached the Conciliation Officer through the Union for initiation of conciliation proceeding and on failure of the conciliation proceedings, the Government of Karnataka referred the matter to the Labour Court on 20.12.2003. Therefore there was no delay as contended by the learned counsel for the petitioner. Learned counsel did not dispute the principle that if an employee is transferred on request, the concerned employee would be placed at the bottom of the seniority list at the transferred place. He only contended in his entire representation - Exhibit M-4 that he never requested for 8 transfer. As per Ex.M4, respondent only sought for cancellation of his transfer order due to the family problems. Therefore, he sought to dismiss the writ petition.
12. In view of the aforesaid rival contentions urged by learned counsel for the parties, the only point that arises for consideration in the present writ petition is:
"Whether the impugned award passed by the Labour Court holding that the respondent workman is entitled to get his original seniority restored with consequential benefits in Bangalore Central Division, KSRTC is just and proper in the facts of the present case ?.
13. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
14. It is not in dispute that the respondent was appointed as Junior Assistant in BMTC on 30.11.1989. It is 9 also not in dispute that he was transferred on 06.07.1998 from computer section of BMTC to BMTC Depot on administrative grounds. It is an undisputed fact that the petitioner-Corporation transferred the respondent to KSRTC, Bellary Division on 11.01.1999 due to administrative reasons. Thereafter on 18.01.1999, the respondent made representation as per Ex.M4 stating that his wife is working in Government of Karnataka and he is having two years old child and therefore requested to cancel the transfer order dated 11.01.1999. Even the subject mentioned in Exhibit - M-4 clearly indicates that the representation pertains to request for cancellation of order of transfer.
15. Exhibit M-5, the transfer order discloses as if the respondent has made request and accordingly he was transferred with immediate effect from 09.04.1999 in terms of Circular dated 16.11.1991 and he is entitled to seniority only from the date of reporting for duty at the transferred place. 10
16. It is an undisputed fact that the respondent corporation has not rejected the application requesting for cancellation of the transfer order dated 11.01.1999 made by the respondent on 18.01.1999. Absolutely no reference is made to the request for cancellation of the transfer order dated 09.04.1999. It is not the case of the petitioner that the Respondent in his representations either on 18.01.1999 or subsequent representations as per Exs. W. 6 to 9 and W-10 admits to forego his 10 years seniority work in the BMTC. It is also not in dispute that prior to 11.01.1999, the respondent has worked as Junior Assistant for more than 10 years.
17. The record clearly indicates that the transfer order was passed on 09.04.1999, as if it was made with reference to his representations. For the first time, the respondent made representation on 20.04.1999 requesting to retain his seniority of 10 years in the BMTC. Again he gave another representation dated 26.4.1999 in reply to the legal notice 11 issued on 22.02.1999 to retain his seniority. Admittedly, no orders are passed by the petitioner-Corporation on the representations made as per Exhibits W-6 to W-10.
18. It is also not in dispute that the petitioner approached the Conciliation Officer through Union on 11.08.2003 and on failure of the conciliation proceedings, the matter was referred to State Government for adjudication under the provisions of Section 10(1)(c) of Industrial Disputes Act,1947 on 20.12.2003. On reference made by the State Government, the Labour Court raised five points for adjudication, wherein this Court is concerned with only point No.4 which reads as under:
Point No.4: Whether the Management represented by the Chief Personal Officer, KSRTC., Central Office, B.H. Road, Bangalore- 500027 is justified in fixing the seniority of the workman - Sri H.S. Srinivasa Murthy, Junior Assistant, Kempegowda Bus Depot, KSRTC Central Zone, only from the date of reporting in 12 the transferred Division by the order dated 9.4.1999?
19. On the basis of the reference made by the State Government, the respondent filed his claim statement stating that he was appointed as Junior Assistant in BMTC on 30.11.1989 and thereafter, he was transferred to Bellary Division, KSRTC and was posted to Kudligi Depot with effect from 23.1.1999, though his transfer was contrary to the settlement between the Union and the Management and that his transfer was for bonafide business reason or administrative exigency. Since his wife was working in Department of Health of the State Government, Bangalore, he had requested the Management to re-transfer him to BMTC, Bangalore in the light of the provisions of the rules applicable to a Government Servant. Subsequently, by an order dated 9.4.1999, he was re-transferred from Bellary Depot to KSRTC Central Division, Bangalore stating that he would acquire fresh seniority in the transferred place which meant that his seniority in the BMTC, Bangalore would count from 9.4.1999. 13 It is the further contention of the workman that he never made any request for such a transfer which would place him junior most in the Division. Inspite of his request in writing for counting his service from the year 1989 for all purposes at BMTC., the Management has not considered his request. Hence, he filed a claim petition.
20. The petitioner-Corporation filed its statement stating that the reference made is barred by limitation and the claim of the workman for restoration of his seniority in the seniority list as he acquired in the BMTC., Bangalore with effect from 30.11.1989 prior to his transfer to KSRTC cannot be accepted and he is not entitled to any relief. The Corporation further contended that the respondent was transferred from Computer Section of BMTC to BMTC Depot 14 and thereafter on administrative grounds from BMTC Depot-14 to Bellary Division, KSRTC vide order dated 11.1.1999. The workman had made representation requesting the Management to re-transfer him from Bellary 14 Division, KSRTC to BMTC, Bangalore. Therefore, he was transferred in accordance with the Circular dated 16.11.1991 from the date of his report to duty in Bangalore Central Division and that he would get his fresh seniority.
21. The main contention of the Corporation is that the transfer order dated 9.4.1999 was made on the request made by the respondent. Therefore, his seniority would be from the bottom of the seniority list in the transferred placed. According to the workman, the transfer order dated 11.1.1999 was in contravention of the Regulations and therefore, he gave a representation dated 18.1.1999 to cancel the transfer order, but not for transfer.
22. Both the learned Counsel advanced their arguments based on Ex.M.4 dated 18.1.1999 wherein the subject discloses for cancellation of transfer stating that his wife is a State Government Servant working in the Health Department and is having two years old child. Therefore, he is requesting 15 to transfer him to BMTC, Bangalore. In Ex.M.5 the subject discloses that in terms of the Order dated 26.2.1999 made by the appropriate Authority, the respondent was transferred to the Central Division, Bangalore on his request and his seniority would be restored from the date on which he would report to duty in terms of the Circular dated 16.11.1991. The entire case turns around only the request dated 18.1.1999. The said Ex.M.4 clearly shows that he had requested for cancellation of transfer order dated 11.1.1999 and not for transfer. The entire material documents clearly indicates that it is not in dispute that the respondent has worked in the BMTC for more than 10 years and no where in the entire material documents produced, he had requested to transfer him or conceded to accept his seniority as junior to junior most in the transferred place.
23. It is also not in dispute that the transfer order was made on 11.1.1999 though it was not challenged by the workman and he gave a representation for cancellation of the 16 said transfer on 18.1.1999 and reported to duty on 21.1.1999 though the transfer order was made on 9.4.1989. If according to the Corporation, if it was a request for cancellation of the order of transfer dated 11.1.1999, the Corporation ought to have rejected the said application holding that the said transfer order was on the ground of administrative reasons and he is bound by that. Now by the transfer order dated 9.4.1999, he has been transferred from KSRTC Bellary to KSRTC., Bangalore Division.
24. It is a well settled law that if any transfer is made on the basis of the request made by the employee, he becomes junior to the junior most in the seniority list of the transferred place in terms of Regulation 13(4) of the KSRTC (Cadre & Recruitment) Regulations, 1982 and it is not in dispute that the dictum of this Court in the case of D.Honnaiah -vs- The Managing Director and Others (W.P.No. 47590/2011 D.D. 16th April, 2013) and the Hon'ble Supreme Court in the case of K.P. Sudhakaran & Another -vs- State of Kerala in Appeal 17 (Civil) No. 9527/2003 D.D.11th May, 2006 to the effect that the transfer was made on the request and hence Regulation No.13(4) of the KSRTC (Cadre & Recruitment) Regulations, 1982 would apply and that he would become junior to the junior most in the seniority list of the transferred place.
25. In the case of D.Honnaiah -vs- Managing Director and Others in W.P.No. 47590/2011 D.D. 16th April, 2013 this Court has held that on two occasions, the workman-petitioner therein requested for transfer on the basis of his personal request and hence, he was transferred. In those circumstances, it was held that Regulation No.13(4) of the KSRTC (Cadre and Recruitment) Regulations, 1982 is applicable and the person, who was transferred, has to accept his seniority as junior most in the transferred place. So also in the case of K.P. Sudhakaran stated supra wherein the transfer was made on the request of the employee. In those circumstances, the Hon'ble Supreme Court held that he 18 cannot claim seniority of the original post when the transfer was made on his personal request.
26. The facts of the said cases in Honnaiah and Sudhakaran stated supra have no application to the facts of the present case. Admittedly, in the present case, as could be seen from Ex.M.4, the request so made in the subject itself is for cancellation of the transfer order dated 11.1.1999. Therefore, at any stretch of imagination, it cannot be said that it is the personal request of the workman to transfer him from Bangalore to Bellary and it is his personal request for cancellation of the transfer order dated 11.1.1999. Therefore, the contentions of the learned Counsel for the petitioner that the transfer was made at the request of the respondent- workman cannot be accepted.
27. It is also not in dispute that the transfer order dated 11.1.1999 was made from BMTC Depot 14 to Bellary Division, KSRTC at administrative reasons. The respondent gave 19 representation on 18.1.1999 citing his personal family problems. Much reliance is placed by the petitioner on Ex.M.6 - Circular dated 16.11.1991. In the said Circular, there is no specific provision or even that, when the employee is transferred from one division to another on administrative grounds, he would become junior to the junior most employee of his cadre in the transferred place as per the Circular, which reads as under:
"In respect of employees holding Division- wide posts who are likely to be transferred to the newly formed Divisions i.e., Bangalore Rural, Gadag, Davangere, Bagalkot and Bidar, the promotions of eligible employees shall be considered by the parent Divisions i.e., Bangalore, Hubli, BIjapur, Bellary, Raichur, Hassan and Gulbarga Divisions on the basis of the seniority of the employees holding Division-wide posts in the existing seniority lists of the respective Divisions. All these promotion to the extent of vacancies available in different cadres in the Division- 20
wide posts, must be completed before
31.12.1991 positively."
28. In the present case, the transfer of the workman from Bangalore Division is not on account of formation of new division and as Bellary is not a new division and was in existence, the transfer of the workman gives an indication that he would become junior to the junior most in the fresh seniority list in the transferred place, cannot be accepted. As already stated above, Ex.M.4 the representation dated 18.1.1999 is for cancellation of his transfer to Bellary Division from Bangalore Division since his wife is working in the Health Department and is in occupation of P.W.D. Quarters and they will have to look after their young child.
29. The material on record clearly indicates that no where in the representations as stated supra, has mentioned that on cancellation of his transfer to Bellary and his re- transfer to Bangalore, he will become junior to the junior most employee of his cadre in the transferred place. The 21 Corporation has accepted his representation without imposing any conditions and transferred him to Bangalore City Division by order dated 9.4.1999 as per Ex.M.5 whereby the Corporation has unilaterally imposed a condition that his seniority would be determined as per Circular dated 16.11.1991 which is impermissible in law even if the said Circular indicates that there is no specific provision or condition that if the employee is transferred from one Division to another Division, he would become junior to the junior most employees of his cadre at the transferred place.
30. Though the workman is examined as WW-1 and produced the documents Exs.W.1 to 11, nothing has been elicited in the cross-examination of W.W.1 that his transfer was made on his request. The material documents produced by both the parties clearly indicate that the request made by the workman on 18.1.1999 is only for cancellation of the transfer order dated 11.1.1999. Therefore, the Tribunal was justified in passing the impugned award. 22
31. For the reasons stated above, the point raised in the present writ petition is answered in the affirmative holding that the impugned award passed by the Tribunal is based on the legal evidence on record and the same is in accordance with law. The finding of fact recorded by the Labour Court that the representation of the respondent dated 18.1.1999 was for cancellation of transfer dated 11.1.1999 cannot be interfere with. The petitioner has not made out any ground to interfere with the impugned award in exercise of the extraordinary writ jurisdiction under Articles 226 and 227 of the Constitution of India. Accordingly, the writ petition is dismissed.
Sd/-
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