Karnataka High Court
The Managing Director Anr vs Shankar S/O Somalingappa on 9 October, 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 09TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION No.81626 OF 2012 (L-TER)
Between:
1. The Managing Director
K.B.J.N.L.
3rd Floor, PWD Avenue
K.R. Circle
Bangalore - 560 001
Now represented by
Chief Enginer, KBJNL
Canal Zaone, No.1, B'Gudi
2. The Assistant Executive Engineer
KBJNL, JBC Sub-Division No.8
Bheemarayanagudi
Taluk: Shahapur
District: Yadgir
...Petitioners
(by Shri Sanjay M. Joshi, Advocate)
And:
Shankar
S/o Somalingappa
Age 35 years
Occ: Nil
2
R/o Shivapur
Taluk: Jewargi
District: Gulbarga
...Respondent
(by Shri P. Vilas Kumar, Advocate)
This Writ Petition is filed under Article 226 of the
Constitution of India praying to issue a writ or direction in the
nature of certiorari, quashing the award dated 24.11.2011 by
allowing KID No.93/2011 and directing the petitioner to reinstate
the respondent into services as daily rated employee, passed by
the Labour Court, Gulbarga as per Annexure-A; and etc.
This petition coming on for further hearing, this day, the
Court made the following:-
ORDER
The petitioner herein is the second party before the Labour Court at Gulbarga in KID No.93 of 2011.
2. Parties in this petition are referred to as per their status before the Labour Court.
3. It is the case of the first party that the second party has been carrying out its systematic activities in the Districts of Gulbarga and Yadgir and they have also been maintaining attendance registers and following various norms while recruiting the employees. The first party further stated that there were vacancies in the office of the second party for the post of Gate 3 Operator @ Cross Regulator-cum-Escape and accordingly, many workman have been employed for those posts. The first party was appointed on daily wages on 02 nd January, 2006 and he was continued to work till his removal from service on 01 st May, 2011. The claim petition further states that the first party was selected on merit, though there were vacancies and there was work for the first party to be done even subsequently, despite the same, he was terminated from services illegally and orally in the year 2011 without complying the procedure contemplated under Section 25(F) of the Industrial Disputes Act, 1947 (for brevity, hereinafter referred to as 'Act'). The first party, further, stated that he was working continuously and without any break for more than 240 days and perfected his right for consideration for regularisation in the services of the second party, however, instead of regularising his services, the second party has removed him illegally in the year 2011. He further contended that his termination made by the second party is without notice and thereby it is contrary of Article 14 of the Constitution of India. He further submitted that his termination is in violation of Section 25-F of the Act and accordingly, he presented the claim 4 petition under Section 10(4)(A) of the Act before the Presiding Officer, Labour Court at Gulbarga. After service of notice, the second party appeared before the Labour Court and filed detailed written statement, denying the averments made in the claim Petition. The second party has contended that as per NMR maintained for the period 15th December 2006 to 17th July, 2011, the name of the first party is not figured out and as such, the second party has contended that the averments made in the claim Petition by the first party is without any basis. It is further stated in the written statement that, there were no vacancies available for any daily-wage employee in the second part as the Project work of Upper Krishna Project under execution through Krishna Bhagya Jal Nigam Limited (KBJNL) was completed and there would be of surplus staff with them and accordingly, the second party had contended that the claim petition deserves to be dismissed. The Labour Court, after considering the pleadings on record, has formulated issues for its consideration, which are as under:
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(1) Whether the first proves that he has worked not less than 240 days continuously under the second party?
(2) Is there any violation of Section 25(F) of Industrial Disputes Act?
(3) Whether the first party is entitled to an order of reinstatement?
(4) What Order/Award?
4. The first party, in order to prove his case, got examined as WW1 and marked Exhhibit W1 and the second party has examined its officer as MW1 and produced and marked Exhibits M1 to M45. The Labour Court after considering the material on record and the arguments advanced by the learned counsel appearing for the parties, by its award dated 24 th November, 2011 allowed the claim Petition in part and set aside the termination order dated 01st May, 2011 passed by the second party. Further, the Labour Court has directed the second party to reinstate the first party into service at the prevailing daily wage without backwages, within four weeks from the date of publication of the award. Being aggrieved by the award 6 passed by the Labour Court, the second party has preferred the instant writ Petition.
5. It is stated in the writ petition by the second party that the second party had taken daily wage workers from the locally available persons wherever the work of Canal/Dam construction was in progress and the Public Works Department initially commenced the work of construction of Dams and Canals on Krishna River and later handed it over to the Irrigation Department with Upper Krishna Project being identified as its sub-part. It is further stated that the Labour Court has not considered the averments made in the written statement filed by them in the right perspective and denied the contentions made by the respondent/first party with regard to maintaining NMRs for the period from 15th December, 2006 to 17th July 2011, which shows the name of the first party. Further, it is stated that, a false claim of illegal termination has been made with an oblique intention of securing employment in the Government owned company and as such the impugned award passed by the Labour Court is liable to be set aside.
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6. I have heard Shri Sanjay M. Joshi, learned counsel appearing for the petitioner-second party and Shri P. Vilaskumar, learned counsel appearing for the respondent-first party.
7. Shri Sanjay M. Joshi, learned counsel appearing for the petitioner submitted that the finding recorded by the Labour Court that the respondent herein has put in service of more than 240 days is without any basis. He further submitted that burden is on the workman to prove that he had worked for more than 240 days. He also submitted that during the course of cross- examination, the claimant has stated that he was receiving salary once in six months or in a year and the same is reflected in the diary. However, the workman has not produced any diary to substantiate his case before the Labour Court seeking reinstatement in the establishment. He further submitted that Exhibit-W1 is not issued by the competent Authority and he has no Authority to submit the same. Accordingly, he submitted that, the impugned award passed by the labour Court is liable to be set aside. In this regard, he placed reliance on the judgment 8 of Hon'ble Supreme Court in the case of STATE OF MAHARASHTRA v. DATTATRAYA DIGAMBER BIRAJDAR reported in (2008)2 SCC (L&S) 126 and submitted that it is the burden on the employee to prove that the employee has worked for 240 days and thereby, employee has to substantiate his employment with the respondent establishment through cogent evidence, however, the same has not been done in this case and as such, the impugned award passed by the Labour Court is without application of mind and far from any cogent evidence and as such, liable to be set aside.
8. Per contra, Shri P. Vilaskumar, learned counsel appearing for the respondent-first party justified the impugned award passed by the Labour Court. He submitted that under Section 10-A of the Act, the employee need not prove the method of selection or produce relevant documents to prove that he had worked for more than 240 days. He also referred to the law declared by the Hon'ble Supreme Court in the case of DEVINDER SINGH v. MUNICIPAL COUNCIL, SANAUR reported in 2011(6) SCC 584 and placing reliance on paragraphs 13 and 19 9 of the said judgment, he submitted that the impugned order passed by the Labour Court is just and proper and does not call for interference by this Court.
9. Having given anxious consideration to the rival submissions of the learned counsel for the parties, I have carefully examined the impugned award passed by the Presiding Officer, Labour Court and also perused the original records. The first party has stated that he had worked continuously under the second party on daily wages from 02nd January 2006 till 01st May, 2011 and he further relies upon Exhibit-W1, which indicates that Assistant Executive Engineer of the second party had issued experience certificate stating that the first party had worked between 02nd January 2006 to 27th November, 2006. I have perused Exhibit-W1. However, it does not bear the outward number, but MW1 pleads ignorance about the same. In order to prove the same, the first party ought to have taken steps to prove the contents of Exhibit-W1, however, no such efforts have been made by the first party during the proceedings before the Labour Court in view of the law declared by the 10 Hon'ble Supreme Court in the case of DATTATRAYA DIGAMBAR BIRAJDAR (supra), but, issuance of Exhibit-W1 was disputed by the second party. Apart from this, the second party had contended that the workman had never worked under the respondent and only the persons whose names appear in NMRs, were working and accordingly, second party pleads that the first party had never worked under their establishment. Though it is the duty cast upon the management to prove the engagement of employees for 240 days, however, MW1, in his evidence during the cross-examination, clearly deposed that he was getting salary once in six months or once in a year and in that view of the matter, though the learned Judge has gone into the factual aspect of the case, but had not given cogent and reasoned finding with respect to the issues framed therein. I have carefully gone through the finding recorded by the learned Judge with regard to issues No.1 to 4. The learned Judge, though discussed about the factual aspects of the case, but has not examined the material document on record as well as the contentions raised by the petitioner/second party with regard to denying the averments that the workman had not worked in 11 their establishment. Under these circumstances, in my considered opinion, this matter requires to be remanded back to the labour Court for fresh adjudication, since the discussion made by the learned Judge, whereunder the findings recorded in the impugned award are not supported by reasons. In this regard, it is useful to refer to the judgment of the Hon'ble Supreme Court in the case of SECRETARY AND CURATOR, VICTORIA MEMORIAL HALL v. HOWRAH GANATANTRIK NAGRIK SAMITY AND OTHERS reported in (2010)3, SCC 732 wherein at paragraphs 40, 41 and 42, the Hon'ble Supreme Court has observed thus:
"40. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration justice - delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an 12 essential requisite of principles of natural justice. "The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind."
[Vide State of Orissa Vs. Dhaniram Luhar AIR 2004 SC 1794; and State of Rajasthan Vs. Sohan Lal & Ors. (2004) 5 SCC 573].
41. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. [Vide Raj Kishore Jha Vs. State of Bihar & Ors. AIR 2003 SC 4664; Vishnu Dev Sharma Vs. State of Uttar Pradesh & Ors. (2008) 3 SCC 172; Steel Authority of India Ltd. Vs. Sales Tax Officer, Rourkela I Circle & Ors. (2008) 9 SCC 407; State of Uttaranchal & Anr. Vs. Sunil Kumar Singh Negi AIR 2008 SC 2026; U.P.S.R.T.C. Vs. Jagdish Prasad Gupta AIR 2009 SC 2328; Ram Phal Vs. State of Haryana & Ors. (2009) 3 SCC 258; Mohammed Yusuf Vs. Faij Mohammad & Ors. (2009) 3 SCC 513; and State of Himachal Pradesh Vs. Sada Ram & Anr. (2009) 4 SCC 422].
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42. Thus, it is evident that the recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected may know, as why his application has been rejected."
10. Suffice it to say that, recording reasons is of a greater significance, where an order is passed at the original stage. The learned Judge ought to have given reasons by elaborately discussing the materials placed by the parties and ought to have considered the same in accordance with law by applying the principles laid down by the Hon'ble Supreme Court stated above. I have also considered the finding recorded by the Labour Court whereunder the learned Judge has come to the conclusion that the termination is with effect from 01st May, 2011. However, neither the first party nor the management have adduced any evidence with regard to the same and on the other hand, as rightly contended by the learned counsel for the first party, the management has terminated the services of the first party orally and in that view of the matter, the finding recorded by the labour Court requires elaborative discussion and therefore, the 14 award is set aside remanding the matter to the Labour Court to decide the matter afresh. I am also conscious of the fact that the impugned award is passed on 24th November, 2011 and thereafter, the writ petition was filed and pending consideration before this Court till date. In that view of the matter, the Presiding Officer of the Labour Court is requested to dispose of the matter within a time-frame.
11. During the arguments, the learned counsel for the parties have made available the copy of the judgment passed by the Hon'ble Supreme Court in the case of BSNL v. BHURUMAL reported in (2014) 7 SCC 177 wherein the Hon'ble Supreme Court, after elaborately discussing regarding victimization, unfair labour practice and malafide orders, etc. to be passed by the Management ultimately, has held that it is open for the management to terminate the services of an employee by paying him the retrenchment compensation without reinstatement. In the light of the observation made by the Hon'ble Supreme Court in the aforesaid case, it is open for the parties to arrive at such a conclusion to resolve to dispute amicably.
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In the result, I pass the following:
ORDER
1. Writ petition is allowed;
2. Award dated 24th November, 2011 passed in KID No.93 of 2011 by the Presiding Officer, Labour Court, Gulbarga is set aside remanding the matter to the Labour Court to decide the lis between the parties afresh after affording reasonable opportunity to both the parties, as expeditiously as possible, and at any rate within a outer limit of three months from the date of their appearance.
3. Since parties are represented by learned counsel in this writ petition, parties are directed to appear before the Labour Court on 02nd November, 2020, without waiting for any notice from the Court.
4. Further, this Court by order dated 23 rd July, 2012 has issued notice to the first party and granted interim order of stay of the impugned award passed by the 16 labour Court subject to compliance of payment of wages as provided under Section 17-B of the Industrial Disputes Act, 1947. It was adverted during the proceedings that in compliance of the said order dated 23rd July, 2012, the petitioner-second party is making payment to the first party/respondent as provided under Section 17-B of the ID Act. The same shall be continued till the disposal of the matter by the Labour Court.
Sd/-
JUDGE lnn