Karnataka High Court
B. Chennappa Gowda vs The Management Of M/S. Central Aracanut ... on 4 October, 2018
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.43003/2011 (L-RES)
BETWEEN:
B. CHENNAPPA GOWDA
AGED ABOUT 51 YEARS
S/O BALAPPA GOWDA
R/AT GOLITHADI HOUSE
BAJATHUR VILLAGE & POST
PUTTUR TALUK
D.K DIST- 574 241
... PETITIONER
(BY M/S SUBBARAO & CO. ADVOCATES)
AND
THE MANAGEMENT OF
M/S. CENTRAL ARACANUT &
COCO MARKETING & PROCESSING
CO-OPERATIVE LIMITED,
P.B. NO. 223, VARANASI TOWERS,
MISSION STREET,
MANGALORE- 575 001
... RESPONDENT
(BY SRI M.R.C. RAVI, ADVOCATE)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO CALL FOR THE ENTIRE RECORDS
PERTAINING TO THE CASE OF THE PETITIONER.
QUASH THE AWARD DATED 19.05.2010 MADE
IN I.D.A.NO.57/1993, MARKED AT ANNEXURE-G AS
THE SAME IS VIOLATIVE OF SECTIONS 25-F, 25-G,
25-N READ WITH SECTION 2(00) OF THE I.D ACT,
1947 AND ALSO VIOLATIVE OF ARTICLES 14, 16 AND
21 OF THE CONSTITUTION OF INDIA.
DIRECT THE RESPONDENT TO GRANT ALL
CONSEQUENTIAL BENEFITS SUCH AS
REINSTATEMENT WITH CONTINUITY OF SERVICE
WITH FULL BACK WAGES AND OTHER BENEFITS ON
PAR WITH THE OTHER 14 EMPLOYEES, WHOSE
NAMES ARE FOUND IN ANNEXURE-A1.
THIS PETITION COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
***
ORDER
The petitioner was appointed in the year 1986 by the respondent- M/s. Central Aracanut and Coco Marketing and Processing Co-Operative Limited (CAMPCO) on daily wage basis and on 01.06.1989 he was placed on probation. Thereafter by order dated 3 30.05.1989 the petitioner along with the 14 others were appointed as Farm Superiors Grade-II. The petitioner was retrenched from service on 31.07.1992, however the said order was withdrawn and the petitioner was transferred to Mangalore and there he worked for one year. Again on 05.07.1993 another order of retrenchment of the petitioner was passed bringing the same with effect from 10.08.1993. The petitioner being aggrieved by the said order raised a dispute and filed a claim statement before the Labour Court at Mangalore under Section 10(4)(a) of the Industrial Disputes Act (for short 'I.D. Act') and the same was registered as ID (LCM) No.57/1993. The Labour Court vide its award dated 11.12.2000 rejected the said dispute.
4
2. The petitioner challenged the said award in writ petition No.44898/2001, which came to be allowed and the matter was remitted back to the Labour Court. Before the Labour Court the petitioner sought for production of 11 documents which were in the custody of Management. By these documents the petitioner has proved that the others who have been appointed along with the petitioner were continued in service. However, on 19.05.2010 the Labour Court passed an Award and rejected the claim of the petitioner. Being aggrieved by the said Award the petitioner has filed this writ petition.
3. Learned counsel for the petitioner submitted that the impugned order is against 25F of I.D. Act since according to respondent the retrenchment order was under 2(oo). In order to fortify the same, learned 5 counsel referred Exs.W16 and W18 - retrenchment notices dated 05.07.1993 and compliance of Section 25F in notice dated 06.11.1993 in which the petitioner was paid by SBI DD No. 415642 dated 03.08.1993 for Rs.3,330/- and another SBI DD No.416370 dated 10.09.1993 for Rs.1000 as retrenchment compensation and the Security Deposit respectively due to the petitioner. Therefore, it is his submission that the impugned order is contrary to Section 25F of the I.D. Act. The respondent has not taken permission from the Government before passing the retrenchment order, which is mandatory for retrenchment notice. In case if the respondent does not satisfy the said provision, issue of retrenchment notices as per Exs.W16 and W18 is violation of Section 25F of the I.D. Act. To substantiate the same, he relied upon the judgment of Hon'ble Supreme 6 Court reported in (1976)1 Supreme Court Cases 822 in the case of THE STATE BANK OF INDIA versus SHRI N. SUNDARA MONEY wherein it has been held with regard to the conditions precedent to retrenchment of workmen.
4. On the other hand, in reply to the submission with regard to absorption of other workmen, learned counsel for the respondent submits that there is no pleading and hence there was no occasion for the Industrial Tribunal to adjudicate the same. Secondly he submits that as per the appointment order produced at Annexure-A1 dated 30.05.1989 the appointment of the petitioner by the respondent was purely on temporary basis. He further submits that the appointment of the petitioner will hold good only until the period of continuity of Management of 7 Plantations by CAMPCO. When the appointment itself is subject to service conditions then the question of application of Section 25F of I.D. Act does not arise. With regard to appointment order, referring the Section 2(oo) (bb) of the Act, he submits that as per Sub-Clause (bb) the services of the petitioner is on contract basis. The stipulated appointment order is that he is temporarily continued subject to fact that condition of Management of the plantation of the coco. The Government of Karnataka leased the coco to the respondent and it was cancelled in April-1993. Hence the conditions stipulated in the appointment order shall prevail. Therefore, the question of application of Section 25F does not arise for consideration. The termination of the petitioner fell under exclusion Clause (bb) under Section 2(oo) of the I.D. Act. Though the respondent is not supposed to 8 pay retrenchment compensation, but with abundant caution and goodwill, the same has been paid to the petitioner. Under these circumstances there is no occasion to re-look the order passed by the Labour Court. On this count also the petition is liable to be dismissed. Hence, he prays to dismiss the writ petition.
5. It is also submitted by the learned counsel for the respondent that the Labour Court specifically made discussion, recorded findings and then came to the conclusion that the retrenchment of the petitioner from service does not attract Section 25F of the Act, since it is the Government by special clause 2(oo)(bb) in the appointment order. To substantiate his arguments, the learned counsel relied upon the decision of Supreme Court in the case between Isha 9 Steel Treatment, Bombay And Association of Engineering workers, Bombay and others.
6. I have heard the learned counsel for both the parties and perused the documents available on record.
7. In the judgment of the Hon'ble Supreme Court reported in (1976)1 Supreme Court Cases 822 in the case of THE STATE BANK OF INDIA versus SHRI N. SUNDARA MONEY it has been held that the High Court can interfere only as against a decision making process ignoring vital evidence and thereby arrived at erroneous conclusion or has mis- constructed the provisions of the relevant Act or misunderstood the scope of its jurisdiction. In view of the judgment of the Hon'ble Supreme Court it is the 10 case of the respondent that, in the judgment of the High Court, State of Andhra Pradesh it has been held that the High Court cannot interfere with the order of Appellate Court and it has got supervisory jurisdiction in order to find whether the decision making process has been reached with all safeguards. In the light of the said judgment it is the case of the respondent party that on examining it was found that though the appointment order was issued as temporary and for stipulated period it shall be terminated on its condition being fulfilled. But, the fact remains that the petitioner was though retrenched in the year 1992, there was a transfer order, with or without request, to Mangalore and he served there for one year in the fields as coco plantation supervisor. May be for the said reason while the petitioner was retrenched as his retrenchment notice was issued as 11 per Exs.W16 dated 05.07.1993 informing the petitioner that he would be retrenched from service with effect from 10.08.1993 and also intimated him to take note that he would be paid the retrenchment compensation of five months wages for every completed year of service. In Ex.W16 it is seen that there is absolutely absence of conditions for which the appointment was made as per Annexure-A1, more particularly, under clause (bb) of Section 2 of the Act it has been stated that no stipulation in the appointment order is made. But if that is the case, the respondent would have mentioned the same in retrenchment notice dated 05.07.1993. For issue of the said notice Section 25F is mandatory in nature which directs the employer to pay the retrenchment compensation and to pay retrenchment allowance along with retrenchment notice. But though it is 12 stated in Ex.W16 the retrenchment compensation would be paid at the later stage, the later stage is after four months i.e. 06.11.1993 as per Ex.W18 on which date along with the said notice the petitioner was paid three months wages of Rs.3,330/- + 1000 as the retrenchment compensation which is quite contrary to Section 25F of the I.D. Act. In the decision of Hon'ble Supreme Court in the case of MACKINNON MACKENZIE AND COMPANY LIMITED Versus MACKINNON EMPLOYEES UNION reported in (2015)4 Supreme Court Cases 544 it has been held that if the payment of retrenchment allowance and compensation is not conveyed along with the retrenchment notice it vitiates the retrenchment itself. It is pertinent to refer the relevant Paras of the said judgment which reads as under:
13
"Further, with regard to the provision of Section 25F clause (c), the appellant-
Company has not been able to produce cogent evidence that notice in the prescribed manner has been served by it to the State Government prior to the retrenchment of the workmen concerned. Therefore, we have to hold that the appellant-Company has not complied with the conditions precedent to retrenchment as per Section 25F clauses (a) and (c) of the I.D. Act which are mandatory in law."
8. Further, with regard to the provisions of Clause
(c) of Section 25F, the respondent Company has not been able to produce cogent evidence that the notice in the prescribed manner has been served by the respondent to the State Government prior to retrenchment of the workman concerned. Therefore, Company has not complied with the condition 14 precedent to retrenchment as per Section 25-F clauses (a)(c) of the I.D. Act which are mandatory in nature. There is also no explanation by the respondent as to why the ingredients of Clauses (a) and (c) of Section 25-F has not been complied by a prior notice to the Government.
9. Further, in the instant case the petitioner is aged about 57-58 years at present. At this stage it may not be appropriate to direct the respondent to reinstate the petitioner into service. Hence, without going into said aspect of the retirement it would be suffice in the ends of justice to direct the respondent to calculate the back-wages and pay 50% of the same to the petitioner within a period of three months from the date of receipt of a copy of this order. 15
With the above observations, petition stands disposed of. The order passed by the Labour Court stands set aside.
Sd/-
JUDGE Sbs*