Karnataka High Court
Mysuru Division General Labour ... vs The Secretary To Government Of India on 11 October, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
WRIT PETITION No.6956 OF 2021 (L-RES)
BETWEEN:
MYSURU DIVISION GENERAL LABOUR
ASSOCIATION, MYSURU
SINCE UNION IS NOT IN EXISTENCE
THE FOLLOWING CLAIMANTS ARE REPRESENTING
1. DEVAIAH
SINCE DEAD BY LRS
1(a) SMT. SAROJAMMA
W/O. LATE. DEVAIAH
AGED ABOUT 67 YEARS
1(b) SRI. D. MAHADEVA
S/O. LATE. DEVAIAH
AGED ABOUT 47 YEARS
1(c) SRI. SHYLESHA
S/O LATE. DEVAIAH
AGED ABOUT 42 YEARS
1(d) SRI. ANANDA
S/O. LATE. DEVAIAH
AGED ABOUT 39 YEARS
ALL ARE R/AT SEEBAN MANTI
BELAGOLA HOBLI
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571 606.
2
2. MARIGOWDA
S/O. LATE. ERAIAH
AGED ABOUT 64 YEARS
R/AT # 93A, MNPM COLONY
BELAGOLA HOBLI
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571 606.
3. SHIVALINGEGOWDA
S/O. CHIKKALINGEGOWDA
AGED ABOUT 70 YEARS
R/AT MEGALA BEEDI
C BLOCK, BELAGOLA
SRIRANGAPATNA TALUK
MANDYA DIST - 571 606.
4. MAYEE GOWDA
SINCE DEAD BY HIS LRS
4(a) PUTTATHAYAMMA
W/O. LATE. MAYEE GOWDA
AGED ABOUT 55 YEARS
4(b) LAKSHMI
D/O. LATE. MAYEE GOWDA
AGED ABOUT 29 YEARS
4(c) CHANDRA
S/O. LATE. MAYEE GOWDA
AGED ABOUT 27 YEARS
ALL ARE R/AT NO. 47/A
MNPM HOUSING COLONY
BELAGOLA HOBLI
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571 606.
5. CHELUVEGOWDA
S/O. HOSAMANE CHELUVEGOWDA
AGED ABOUT 58 YEARS
R/AT NO. EX. C704, BELAGOLA,
SRIRANGAPATNA TLAUK
3
MANDYA DIST - 571 606.
6. RAMEGOWDA
S/O. THIMMEGOWDA
SINCE DEAD BY HIS LRS
6(a) MANIYAMMA
W/O. LATE. RAMEGOWDA
AGED ABOUT 51 YEARS
6(b) MADHUKUMAR B.R.
S/O. LATE. RAMEGOWDA
AGED ABOUT 34 YEARS
6(c) MANU B.R.
S/O. LATE. RAMEGOWDA
AGED ABOUT 32 YEARS
ALL ARE R/AT BELAGOLA
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571 606.
7. RAMEGOWDA
S/O. KUNTEGOWDA
SINCE DEAD BY HIS LRS
7(a) SHANTHAMMA
W/O. LATE. RAMEGOWDA
AGED ABOUT 56 YEARS
7(b) ASHOKA
S/O. LATE. RAMEGOWDA
AGED ABOUT 40 YEARS
7(c). SUNITHA
D/O. LATE. RAMEGOWDA
AGED ABOUT 36 YEARS
ALL ARE R/AT HULIKERE VILLAGE
BELAGOLA HOBLI
4
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571 606.
8. KAMARUDDIN
S/O. GHOUSE MOHIYUDDIN
AGED ABOUT 60 YEARS
R/AT #11, BELAGOLA
SRIRANGAPATNA TLAUK
MANDYA DIST - 571 606.
9. GOVINDARAJU
S/O. LATE. VENKATEGOWDA
AGED ABOUT 54 YEARS
R/AT NEAR PATALLAMMA TEMPLE
DODDABEDDI, BELAGOLA
SRIRANGAPATNA TALUK
MANDYA DIST - 571 626.
10. VISHAKANTA
SINCE DEAD BY HIS LRS
10(a) PREMA
W/O. LATE. VISHAKANTA
AGED ABOUT 48 YEARS
10(b) RAVIKUMAR
S/O. LATE. VISHAKANTA
AGED ABOUT 32 YEARS
10(c) CHANDRA
S/O. LATE. VISHAKANTA
AGED ABOUT 29 YEARS
ALL ARE R/AT BELAGOLA
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571 606.
...PETITIONERS
(BY SRI.VISHNUKUMAR K.,ADVOCATE)
5
AND:
1. THE SECRETARY TO GOVERNMENT OF INDIA
DEPARTMENT OF HEAVY INDUSTRIES
NEW DELHI, ROOM NO.126.C
UDYOG BHAVAN, RAFI MARG
NEW DELHI - 110 011.
2. THE CHAIRMAN CUM MANAGING DIRECTOR
HINDUSTAN PAPER CORPORATION LIMITED
(IN LIQUIDATION)
REP. BY OFFICIAL LIQUIDATOR
8TH FLOOR, LOKANAYAK BHAVAN
KHAN MARKET
NEW DELHI - 110 011.
3. THE MANDYA NATIONAL PAPER MILLS PVT LTD.,
(IN LIQUIDATION)
REP. BY OFFICIAL LIQUIDATOR
#26-27, 12TH FLOOR
RAHEJA TOWERS
M.G. ROAD
BENGALURU - 560 001.
... RESPONDENTS
(BY SMT.ANUPAMA HEGDE, ADVOCATE FOR R1;
SRI. JAGADEESHGOUD PATIL, ADVOCATE FOR R3;
SMT. TEJASWINI B.R., ADVOCATE FOR R2)
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE AWARD OF LABOUR COURT MYSORE DATED 14.11.2014
VIDE ANNX-AC R.NO.5/09 AND THE ORDER
DATED:19.06.2018 PASSED BY PRINCIPAL DISTRICT JUDGE
MANDYA, IN MISCELLANEOUS PETITION NO.27/2015 REF
NO.5/09 VIDE ANNX-AH AND TO ISSUE A SUITABLE WRIT
OR ORDER BY DIRECTING THE RESPONDENTS TO ISSUE A
CIRCULAR AFRESH OR AMENDING THE CIRCULAR
DATED:08.06.2000 VIDE ANNX-H TO EXTEND THE BENEFITS
OF VOLUNTARY SEPARATION SCHEME AND TO PAY WAGES
FOR THE PERIOD FROM 10.09.1985 TO 20.10.2000.
6
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The present petition is filed by the petitioners seeking quashment of the award of the Labour Court, Mysore dated 14.11.2014 passed in Ref.No.5/2009 at Annexure - AC, also quashment of the order dated 19.06.2018 passed by the Principal District Judge, Mandya in Miscellaneous Petition No.27/2015 at Annexure - AH and further to issue a writ or order directing the respondents to issue a circular afresh or amending the circular dated 08.06.2000 at Annexure - H to extend the benefits of Voluntary Separation Scheme and to pay wages for the period from 10.09.1985 to 20.10.2000.
2. It is the case of the petitioners that they are the casual labourers having joined the services of Mandya National Paper Mills Pvt. Ltd., the third respondent and were discharging the work in the nature of taking paper from paper cutting machine and shifting the same to the 7 department and all other incidental work thereof. That the petitioners and along with other casual labourers had raised an industrial dispute in I.D.No.22/1985 seeking equal pay for equal work to that of the regular employees in which an award dated 24.02.1987 was passed directing the third respondent to pay the wages on par with regular employees. The petitioners thereafter had approached the management of the third respondent for implementation of the said award. On declining of the same, the petitioners resorted to strike insisting implementation of the award, which resulted in termination of services of the petitioners by the management of the third respondent. The management of the third respondent filed an application before the Industrial Tribunal, Mysore, seeking approval of their action at serial Application Nos.17-28 which resulted in refusal by the Industrial Tribunal, Mysore by its order dated 31.10.1996. The management of the third respondent challenged the said order of refusal in writ petition No.1269 and 6471-6480 of 1997. The said writ petition was also dismissed by this Court by order dated 8 09.02.1998. The management filed writ appeal in W.A.No.1822-1832/1998 which also resulted in dismissal by order dated 16.07.1998. The management carried the said order to the Apex Court by filing special leave petition which also resulted in dismissal. Thereafter, the management of the third respondent reinstated all the petitioners into service along with back wages on 09.04.1999.
3. The third respondent issued a circular dated 08.06.2000 announcing Voluntary Separation Scheme to its employees. However, petitioners being causal labourers were excluded from the benefit of the said scheme for the obvious reasons as all the petitioners having had the dispute with the third respondent. The management of the third respondent assured the petitioners that the benefit under the Voluntary Separation Scheme may provide to them. Thereafter, the management of the third respondent issued an office order dated 20.09.2000 giving terminal benefits to the petitioners as per Annexure -M and the statement of 9 details of salary was also issued on 20.09.2000 as per Annexure -N. A communication dated 21.09.2000 as per Annexure O was issued with regard to terminal benefits. The petitioners accepted the terminal benefits. However, reserved their rights to raise the dispute as there was no order of termination and no compensation was paid in accordance with law.
4. The petitioners approached the conciliation officer by raising dispute on 29.11.2000 who after registering the dispute issued notice on 05.12.2000 to the respondents as per Annexure Q. The first and second respondents did not appear before the conciliation authority. The conciliation authority sent a factual report on 23.03.2014 to the Government stating that there exists an industrial dispute. In the meanwhile, the Official Liquidator invited claims from the debtors including workmen. Petitioners filed separate affidavit claiming benefits of Voluntary Separation Scheme. The Official Liquidator passed an order rejecting the claim of the petitioners on 15.12.2003. Thereafter, petitioners filed another affidavit on 26.03.2007 before the 10 Official Liquidator claiming wages on par with regular employees from 10.09.1985 to 20.10.2000. Since the said claims of the petitioners were rejected, they filed company applications before this Court which by a common order dated 07.09.2007 directed the Official Liquidator to adjudicate the claim applications in accordance with law. The Official Liquidator commenced the adjudication. During the course of adjudication in view of pendency of the dispute in Ref.No.5/2009, the Official Liquidator rejected the claim applications giving liberty to the petitioners to come back after adjudication of the dispute before the Labour Court. The Official Liquidator was also impleaded before the Labour Court. On consideration of the claim of the petitioners, the Labour Court by order dated 14.11.2014 rejected the claim of the petitioners on the premise that the petitioners had not obtained permission under Section 446(1) of the Companies Act, 1956. Aggrieved by the same, petitioners filed miscellaneous petition before the Principal District Judge Mandya in Mis.Petition No.27/2015 seeking correction of 11 error in the award passed by the Labour Court, Mysuru. Thereafter, the Principal District & Sessions Judge, Mandya passed orders in the said Mis.Petition No.27/2015 rejecting the said petition on 19.06.2018. The petitioners thereafter approached the Official Liquidator by filing memorandum dated 12.12.2018 which was rejected by the Official Liquidator on 03.06.2019 on the premise that the petitioners had already taken retirement benefits as such, they were not entitled for the reliefs. Aggrieved by the said order of the Official Liquidator, the petitioners approached this Court by filing separate Company Applications. The said applications were rejected by this Court by common order dated 25.10.2019 reserving liberty to the petitioners to approach appropriate forum. Hence, this present petition.
5. Sri Vishnukumar K., learned counsel for the petitioners reiterating the grounds urged in the memorandum of writ petition submitted that the Labour Court, Mysore has failed to consider the case of the petitioners and that the first respondent while issuing 12 circular as per Annexure H has not extended the benefit of Voluntary Separation Scheme to the casual labourers with an ulterior intention as the petitioners had raised the dispute against them. He further referring to Section 25 (FFF) of the Industrial Disputes Act submits that there is no compliance of the statutory requirements contemplated under the said Act. The petitioners are thus, entitled for issue of circular afresh modifying the earlier order.
6. Smt. Anupama Hegde, learned counsel appearing for the respondent No.1 submits that the very arraying of the first respondent to the present petition is frivolous and vexatious as neither there is any averments made nor any reliefs sought. Hence, seeks for dismissal of the writ petition.
7. Sri Jagadeeshgoud Patil, learned counsel representing Official Liquidator appointed for respondent No.3 submits that the petitioners have accepted and acknowledged the benefits of termination without any demur and the petitioners having accepted the benefits of 13 termination are estopped from prosecuting the present petition.
8. Heard the learned counsel for the parties and perused the records.
9. There is no dispute with regard to the fact that the petitioners were working as causal labourers under the third respondent's company.
10. The dispute which was raised by the petitioners along with other employees seeking equal pay for equal work was granted in their favour and though the services of the petitioners were terminated by the management of the third respondent on the grounds of they participating in the strike seeking implementation of the said order of equal pay for equal work that of the regular employees, they were reinstated along with their back wages on 09.04.1999. Thereafter, the third respondent's company which was admittedly a sick and unviable unit had offered VSS Package in terms of the scheme made applicable to all excluding the casual workers.
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11. Subsequently, by the office order dated 20.09.2000, the third respondent had terminated the services of the petitioners and had paid them terminal benefits taking into consideration the details of salaries which the petitioners were entitled to. The petitioners had admittedly received the said benefits without any demur and the third respondent closed of its operation on 13.09.2000. Third Respondent was ordered to be wound up on 20.10.2000 and an official liquidator was also appointed for the process.
12. The conciliation officer who upon the dispute raised by the petitioners through the President of the Labour Association, had sent the factual report, reporting failure of the conciliation process by communication dated 23.03.2001. The petitioners had filed affidavit, before the Official Liquidator who was appointed for the winding up process of the third respondent, claiming VSS benefit and difference of gratuity, etc. 15
13. During the pendency of the said proceeding before the Official Liquidator, the petitioner has sought reference of the disputes under Section 10(1)(c) of the Industrial Disputes Act, 1947 and the appropriate Government had referred the matter for adjudication of the point raised thereunder regarding validity or otherwise of the termination of the petitioner from the service on and from 13.09.2000. The said reference was originally filed against the Secretary, Government of India, Department of Heavy Industries, as Respondent No.1, Chairman-cum- Managing Director, Hindustan Paper Corporation Limited as Respondent No.2. The official liquidator attached to High Court of Karnataka representing Mandya National Paper Mills was impleaded as Respondent No.3. Upon the submissions made by counsel for the petitioners expressing an intention to approach the Labour Court in the said reference proceedings, the Official Liquidator permitted the petitioners reserving liberty to come back after adjudication of their claim by the Labour Court. 16
14. It is necessary to note though the petitioners had raised industrial dispute before the Labour Officer, mandya, seeking alternative appointment in any one of the subsidiary units of Hindustan Paper Corporation Limited, had however restricted their claim for monetary benefits in the nature of difference in wages for the period from 1985 to 20.09.2000 on par with that of the confirmed employees along with benefits of voluntary separation scheme as claimed in the petition. The Labour Court had framed the following points for its consideration, namely:
(i) Whether the First Party workmen prove that they have been illegally terminated from services of the Second Party on 13.09.2009 as contended?
(ii) Whether the First Party workmen prove that there exists a relationship as employer and workmen between themselves and the Second Party?
(iii) The reference is bad for mis-joinder of parties?
(iv) Whether the First Party workmen are entitled to the reliefs as claimed?
(v) What order or Award?17
15. The Labour Court, by answering points No.1, 2 and 4 in the negative and point No.3 in the affirmative rejected their reference directing the petitioners to approach the Official Liquidator to prove their debt against the company in liquidation under Sections 528 to 530 of Companies Act, 1956.
16. The contention of the petitioners that their services were terminated without compliance of the mandatory provision of the Industrial Disputes Act, was declined on the premise that the petitioners could not proceed against the respondent No.3 without taking leave from the Company Court under Section 446(1) of the Companies Act, 1956. It is further held that the claim of the petitioners for alternative appointment with the Respondent Nos.1 to 2 cannot be considered as there was no employer and employee relationship between the parties. The Labour Court also noted at Paragraph 12 of its Judgment that while the petitioners in their claim statement had sought direction against the respondents 1 and 2 to pay the amount claimed by them in their claim 18 statement being difference in wages on par with the regular employees, there was material inconsistency in the Point No.1 of the reference and the prayer of the petitioner in the claim statement as there was no relief of reinstatement sought for by the petitioners. That the Labour Court also found that in the point of reference, there is no mention with regard to the petitioners being entitled to claim difference amount of wages on par with the confirmed employees. On appreciation of the evidence of the witnesses and the contents of the documents, the Labour Court has held that none of the petitioners were appointed by the Respondents 1 and 2. It also found the Respondents 1 and 2 had neither issued any appointment letter nor paid wages nor terminated the services of the party-workman. The Labour Court has also taken into consideration that Mandya National Paper Mills which was an independent entity under which the petitioner claimed to have been appointed and who alleged to have terminated their services was not made party in the proceedings. The said entity was under the winding up 19 process. Admittedly, petitioners had impleaded the Official Liquidator representing said Mandya National Paper Mills in the said Reference No.5/2009. Therefore, the Labour Court was of the opinion that the petitioners had to prove their claim against the company under liquidation before the Official Liquidator in terms of Section 528(2) and 530 of the Companies Act. The Labour Court thus concluded that the petitioners not having obtained leave of the Company Court in the Company Petition No.112/1994 as required under Section 446(1) of the Companies Act, 1956, the Reference was thus hit by the said provision and thus, was not maintainable. Besides the Labour Court also found that the petitioners had failed to prove that they have been illegally refused employment by the Management of Mandya National Paper Mills Limited.
17. Aggrieved by the same, the petitioners preferred Miscellaneous Petition No.27/2015 before the Principal District & Sessions Judge, Mandya under Order 9 Rule 13 of CPC read with Section 11 of the Industrial Disputes Act 20 and Rule 29 of the Industrial Rules. The said petition was rejected.
18. Thereafter the petitioners filed claim petitions before the Official Liquidator reiterating their case and seeking difference of wages from 1985 to 2000 and benefits under the Voluntary Separation Scheme as given by the Management of Mandya National Paper Mills Pvt. Ltd., to other confirmed employees. The said claim petitions were rejected by the Official Liquidator by order dated 03.06.2019 solely on the premise that the company in liquidation had paid eligible benefits to the claimants and the same was accepted by them and that the petitioners having accepted said benefits had not raised the dispute for a period of 9 years until the reference was sought in the year 2009. Aggrieved by the same, the petitioners filed Company Applications before this Court being Company Applications No.164/2019 and connected matters. This Court, by order dated 25.10.2019 rejected the said applications reserving liberty to the claimants to seek redressal of their grievances in accordance with law. 21 It appears that the present petition is filed after the dismissal of the said company applications.
19. As already noted above, the petitioners have received the terminal benefits as far back as on 20.09.2000. The third respondent-Company was ordered to be wound up on 20.10.2000. The matter was thus, ceased before the Company Court. The petitioners have not questioned the payment of wages and other benefits during the life time of the Company having accepted the terminal benefits the petitioners kept quite for a period over 9 years and thereafter, sought reference under Section 10(1)(c) of the Act in Reference No.5/2009. The petitioners have even availed the remedies available before the Official Liquidator which were rejected on the grounds of petitioners having received the benefits and have thereafter approached the Company Court which also resulted in its rejection. In that view of the matter, the claim of the petitioners that their termination was invalid and that they are entitled for the benefits of Voluntary 22 Separation Scheme on payment of wages from 10.09.1985 to 20.10.2000 cannot be countenanced.
20. The order dated 14.11.2014 passed by the Labour Court, Mysore in Ref.No.5/2009 and order dated 19.06.2018 passed by the Principal District & Sessions Judge, Mandya in Mis.Petition No.27/2015 does not warrant any interference. Accordingly, the petition is dismissed.
Sd/-
JUDGE MKM/bnv