Karnataka High Court
Siddappa S/O Kanakappa Chalewadi vs The North East Karnatak Road Transport ... on 28 August, 2017
Author: S.Sujatha
Bench: S.Sujatha
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF AUGUST 2017
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION No.204631/2014 (L-KSRTC)
BETWEEN:
Siddappa
S/o Kanakappa Chalewadi,
Age: 40 years,
Occ: Now Nil,
(Ex.Driver-cum-Conductor
D.No.429 Lingasugur Depot)
R/o Gudadnal,
Post. Modinapur,
Tq. Lingasugur, Dist. Raichur.
...Petitioner
(By Sri. Shivasharna Reddy, Advocate)
AND:
The North East Karnataka
Road Transport Corporation,
Through its Divisional Controller,
Raichur Division,
Raichur.
...Respondent
(By Sri. Deepak V. Barad, Advocate)
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This writ petition is filed under Articles 226 and 227 of the
Constitution of India, praying to issue a writ of certiorari for
setting aside the award of the Labour Court passed in Ref.
No.1/2014 dated 11.3.2014 which is at Annexure-A and
consequently order for the reinstatement of the petitioner into
service with full back wages and also continuity of service with
all other consequential benefits in the interest of justice.
This petition coming on for Preliminary Hearing in 'B'
group this day, the court made the following:-
ORDER
The petitioner has challenged the award of the Labour Court passed in Reference No. 1/2014 dated 11.3.2014.
2. The petitioner was appointed as a driver-cum- conductor with respondent-Corporation in the year 2005. Under the report submitted against him by the Divisional Security Inspector alleging that he came to the office on 29.3.2010 by consuming alcohol, the disciplinary authority initiated domestic inquiry. The Inquiry Officer submitted a report and accordingly the penalty of dismissal was passed. This dismissal order was the subject matter of Reference 3 No.1/2014 before the Labour Court. It was contended that the Inquiry Officer has not applied his mind to the facts of the case and the order of dismissal is nothing but victimisation and unfair labour practice; no permission from the Industrial Tribunal, Bengaluru obtained before passing the order of dismissal. The same was resisted by the Corporation contending that the petitioner was appointed as a trainee, driver-cum-conductor. A domestic inquiry was conducted by appointing retired district judge as an Inquiry Officer, who in turn has provided fair and reasonable opportunity to the petitioner. The Inquiry Officer has given positive finding that the charges levelled against the petitioner are proved. The appointing authority after considering the records coupled with report of Inquiry Officer has removed the name of the petitioner from the list of trainee, driver-cum-conductor which is just and proper. Based on the said pleadings, the issues were framed and claim petition was dismissed. Being aggrieved by the same, the petitioner is before this Court.
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3. The learned counsel Sri Shivasharan Reddy appearing for the petitioner would contend that the petitioner was appointed in the year 2005 against permanent vacancy and was terminated from service on 16.11.2011. Considering long period of service rendered by the petitioner, the claim of the petitioner required to be considered on merits. The Tribunal on wrong premise placing reliance on Apprenticeship Act, 1961 held that the petitioner is not a workman as defined under section 2(s) of the Industrial Disputes Act, 1947 ('the Act' for short), hence the provisions of section 33(2)(b) of the Industrial Disputes Act are not applicable to the petitioner. Thus, he seeks for setting aside the order impugned.
4. The learned counsel Sri Deepak V. Barad, appearing for the respondent-Corporation placing reliance on the judgment of Hon'ble Apex Court in the case of U.P. STATE ELECTRICITY BOARD V/s SHIV MOHAN SINGH AND ANOTHER reported in (2004) 8 SCC 402 submitted 5 that when Apprenticeship Act, 1961 is applicable, the Labour Court/Industrial Tribunal will not have any jurisdiction to entertain any dispute arising therefrom. The petitioner has past history of misconduct. He was involved in as many as 21 cases. In view of the misconduct being proved after inquiry, the Labour Court was justified in holding that the provisions of the Act are not applicable to the facts of the present case.
5. Having heard the rival submissions of the parties, the only point that would arise for consideration in this writ petition is;
Whether the Labour Court was justified in holding that the petitioner is not a workman as defined under section 2(s) of the Act, hence the provisions of the said Act are not applicable to the petitioner?
6. The Labour Court proceeded on the ground that the petitioner is a trainee driver-cum-conductor, as such, 6 comes within the definition of apprentice as envisaged in Apprenticeship Act, 1961. Such being so, the provisions of Industrial Disputes Act, 1947 are not applicable to the facts of the present case, which prima facie appears to be not in conformity with the provisions of the Act.
7. It is pertinent to refer the definition clause of 'workman' as defined under section 2(s) of the Act, which reads thus;
"workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such 7 person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity;
or
(iv) who, being employed in a supervisory capacity, draws wages exceeding [ten thousand rupees] per mensem or 8 exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.
8. The said definition clause includes apprentice. In the case of U.P. STATE ELECTRICITY BOARD V/s SHIVA MOHAN SINGH, stated supra, the Hon'ble Apex Court has laid down the principles of law in the context of an apprentice appointed under the Apprenticeship Act, 1961. However, the petitioner herein, is not appointed under the said Act. As narrated above, the petitioner has worked for a long period from the year 2005 to 2011. In such circumstances, it is difficult to believe that the person appointed in 2005 would continue to be a trainee till 2011. Merely for the reason that the petitioner was appointed as a trainee, it cannot be held that he will not fall within the definition of workman as contemplated in the Act. The 9 status of the petitioner whether a workman or not, has to be examined in the light of the definition of workman under the Act. Vis-à-vis the facts and circumstances of the case.
9. In the case of Divisional Controller, K.S.R.T.C. V/s C.R.Kuppalli and another reported in 2002(1) LLJ 329, the judgment was rendered while considering the facts, where a workman was appointed as badli conductor on November 15, 1972 and later as conductor on June 6, 1973 on probation for a period of two years. Before expiry of the probationary period, his services were terminated on January 24, 1975 holding that the workman was unsuitable for the post. No inquiry was conducted prior to his termination. The legal proceedings initiated by the workman in appeal and revision did not yield any result and industrial dispute was raised by the workman under the Industrial Disputes Act, but the Government refused to refer the dispute. After coming into force of section 10(4-A) of the Act, the workman filed an 10 application challenging the dismissal. In such circumstances, the Division Bench relying upon the service condition of the workman governed by the Karnataka State Road Transport Corporation (Cadre and Recruitment) Regulations, 1982 held that the view taken by the learned Single Judge that the termination of the workman should have been preceded by an enquiry runs contrary to Regulation 11(3) of the Act which governs the service conditions of the employee, the legal effect of such an order means, that it amounts to legislating under the guise of interpretation which is impermissible in law. As aforesaid, an inquiry is conducted in the present case and for long period the petitioner was treated as a workman, only for the reason that he was appointed as a trainee would not preclude him from claiming the benefits of a workman under the Act. To this effect, the order of the Tribunal requires to be set aside without going into the merits or demerits of the case and is accordingly ordered. 11
The writ petition is allowed. The impugned order is quashed. The matter is remanded to the Labour Court to decide the issue afresh in the light of the observations made above. All rights and contentions of both the parties are left open to be considered in accordance with law. Labour Court shall expedite the matter and appropriate order shall be passed in accordance with law.
Sd/-
JUDGE *MK