Karnataka High Court
Subhash S/O Narasinghrao Jadhav vs The Asst Executive Engineer Anr on 22 February, 2023
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WP No. 84862 of 2011
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 84862 OF 2011 (L-TER)
BETWEEN:
SUBHASH S/O NARASINGHRAO JADHAV,
Aged 42 years, OCC: NIL,
R/O RAMTEERTH-K, POST CHANDKAPUR,
TQ. BASAV KALYAN, DIST : BIDAR.
...PETITIONER
(BY SRI. P.VILASKUMAR SENIOR COUNSEL FOR
SRI P NITESH, ADVOCATE)
AND:
1. THE ASST EXECUTIVE ENGINEER,
PANCHAYAT RAJ ENGINEER SUB-DIVN.,
BASAVA KALYAN, DIST : BIDAR.
Digitally signed
by SACHIN 2. THE SECRETARY,
Location: High GOVERNMENT OF KARNATAKA,
Court of RURAL DEVELOPMENT & PANCHAYAT RAJ,
Karnataka III FLOOR, M.S. BUILDING,
DR.AMBEDKAR VEEDHI, BENGALURU.
...RESPONDENTS
(BY SRI PRASHANT KUMMAN ADVOCATE FOR R1;
SRI VIRANAGOUDA M.BIRADAR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A
WRIT OF CERTIORARI FOR SETTING ASIDE THE AWARD OF
THE LABOUR COURT AT GULBARGA IN REF. NO. 164/2008
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WP No. 84862 of 2011
DATED 12.05.2011 WHICH IS AT ANNEXURE-A AND ORDER
FOR THE REINSTATEMENT OF THE PETITIONER INTO SERVICE,
WITH FULL BACK WAGES, CONTINUITY OF SERVICE AND ALL
OTHER CONSEQUENTIAL BENEFITS.
THE ABOVE WRIT PETITION HAVING BEEN HEARD ON
20.02.2023, AND RESERVED FOR ORDERS, COMING ON FOR
"PRONOUNCEMENT OF ORDERS" THIS DAY THE COURT
MADE THE FOLLOWING:
ORDER
Heard Sri. P.Vilas Kumar, the learned Senior counsel appearing for the petitioner, Sri. Prashant Kumman, learned counsel appearing for respondent No.1 and the learned Government Advocate appearing for respondent No.2.
2. The award passed by the Labour Court in Reference No.164/2008 on the file of Labour Court, Gulbarga is questioned by the petitioner.
3. It is the case of the petitioner that he applied for the post of Diploma Engineer (Mechanical) as against the vacant post in the office of the first respondent. The petitioner was employed as a daily wager on 01.07.1997 and he worked till 29.06.2007 and later he was terminated in terms of oral instructions is the assertion of the petitioner. It is his further case that the procedure required to be followed under the -3- WP No. 84862 of 2011 provisions of Industrial Dispute Act have not been followed before terminating the petitioner. It is urged that since the worked from 01.07.1997 to 29.06.2007, without any break as a daily wager, he is entitled for reinstatement and all the consequential benefits.
4. Before the Labour Court, in Reference No.164/2009, the respondents disputed the claim and disputed the relationship of the employer and employee. It is urged that that there was no temporary or daily wage employee in their office in the given period. It is further stated that NMRs do not disclose the name of the petitioner as daily wager and there were no vacancies in the cadre of Diploma Engineer in the year 1997 and this petitioner was never appointed as Diploma Engineer in the year 1997 as claimed by the petitioner.
5. Evidence was led by the petitioner to substantiate his claim. The petitioner in the cross-examination states that he was invited for the interview and further states in the cross- examination that the letter was sent inviting him for the interview. Said letter is not produced by the petitioner. -4- WP No. 84862 of 2011
6. The respondents have led evidence in this matter and the respondents have produced NMR sheets for the year 1997-99 which are marked as MW-1- MW-46.
7. The Labour Court has come to the conclusion that the claim of the petitioner that he was worked for not less than 240 days as Diploma Engineer under the respondents is not established. It is the finding of the Labour Court that the NMR produced by the respondents did not disclose the name of the petitioner as their employee.
8. Learned Senior counsel Sri.P.Vilas Kumar, appearing for the petitioner would contend that the Labour Court committed error in rejecting the claim of the petitioner. The petitioner produced evidence before the Labour Court to hold that he worked for not less than 240 days without any break and entitled to regularisation and termination is illegal.
9. Referring to the NMRs produced by the respondents he would submit that the NMRs are not in order and the same has been admitted by the respondents in the cross- examination. It is also his contention that in the cross- examination, the witness on behalf of the respondents, has -5- WP No. 84862 of 2011 admitted that the petitioner was working under respondents on contract basis and referring to this submission, he would contend that the claim of the petitioner that he was working as daily wager is established.
10. Learned counsel for the respondents would submit that the petitioner did not possess necessary qualification to be employed as Diploma Engineer in the vacant post in the year 1997 and no persons were employed as daily wagers as there were sufficient employees in the office of the first respondents, as such the application was never invited for the post of Diploma Engineer and the NMRs produced by the respondents would reveal that the petitioner's name is not found in the NMRs and as such the claim of the petitioner that he worked under respondents is not established.
11. This Court has considered the rival contentions raised at the bar and also perused the records and the impugned judgment passed by the trial Court.
12. The labour Court has taken into consideration the evidence led by the petitioner wherein he has stated that he had applied for the post diploma Engineer and he also received -6- WP No. 84862 of 2011 the letter calling him for the interview. However, the application is not placed before the Court. The letter inviting the petitioner for interview is also not placed before the Court. The labour court has relied on the judgment of the Apex Court in the case of Krishnabhagya Jala Nigam vs. Mohammed Rafi. (2009) 2 SCC (L&S) 646 and also judgment of the Apex Court in the case of R.M.Yellatti vs. Executive Engineer (2006) 1 SCC
106. Applying the ratio laid down in the aforementioned cases, the labour Court has concluded that there are no acceptable materials to hold that the petitioner worked for not less than 240 days, in 12 calendar months prior to 29.06.2000 when the petitioner was allegedly retrenched.
13. By referring to evidence of MW-1, the learned Senior counsel for the petitioner contended that the NMR records produced from Annexure M-1 to M46 are not in order and same is admitted by the MW1 in the cross-examination. It is contended that excluding the NMRs containing the name of the petitioner, the other NMRs are produced to deny the legitimate claim of the petitioner. It is further contended that the MW1 has admitted in the cross examination that that there will be written agreements between the respondents and the -7- WP No. 84862 of 2011 contractors and in case the respondents hired by the contractors, then the respondents should have produced the agreements. It is urged no such agreements are produced before the Court and the court has to hold adverse inference against the respondents.
14. It is to be noticed that merely because the respondents have not produced any agreements between the respondents and the contractors, it cannot be said that the petitioner has established his case relating to employment under the respondents. When the petitioner has made a specific assertion that he was employed as against the sanctioned vacant post and he was appointed on merit after holding the interview, the burden is on the petitioner to establish that he applied for the post and he was invited by for the interview and he did possess necessary qualification as diploma mechanical engineer. From the records placed before the Court, it is apparent that the petitioner has not produced the application for having applied for the post and the letter inviting him for the interview. It is also noticed that the petitioner has not produced the certificate in proof of his claim that he was diploma engineer in Mechanics. This being the position, this -8- WP No. 84862 of 2011 Court is of the view that the Tribunal is justified in holding that the petitioner has failed to discharge his burden.
15. It is also required to be noticed that the Labour court has noticed the apparent contradictions in the claim of the petitioner and has discussed the same in paragraph No.13 of the award.
16. The impugned award is passed by the Labour Court has also taken into consideration the conduct of the petitioner in raising the dispute. The petitioner though claimed that he was illegally removed from service on 29.06.2000, for nine years he has kept quiet and did not raise a dispute. Taking this aspect into consideration, the Labour court and it has concluded that the petitioner has failed to establish his claim and to discharge the burden cast on him.
17. The Labour Court has also referred to Ex.M1 to M47. Though Ex. M1 to M47 are not the documents reflecting a continuous serial numbers, that by itself cannot be a ground to discard the documents. Unless it is established that the NMR sheets are to be maintained in a particular manner, merely because the continuous serial numbers or page numbers of the -9- WP No. 84862 of 2011 documents are missing, it cannot be said that the respondents have withheld the documents containing the name of the petitioner. The initial burden cast on the petitioner is not discharged.
18. Thus, the adverse inference cannot be drawn in the backdrop of the facts of this case.
19. This Court has directed the counsel for the respondents to verify as to whether the registers relating to daily wage employees are maintained by the respondents. Learned counsel for the respondents on instructions has submitted that the registers prior to the year 2003 are not available with the respondents.
20. For the reasons discussed above, this Court is of the view that no grounds are made out under Article 227 of Constitution of India to interfere in the decision of the labour Court.
Accordingly, the petition is dismissed.
Sd/-
JUDGE GVP List No.: 1 Sl No.: 45