Karnataka High Court
Sri K Manjunatha, vs The District Registrar Of ... on 6 April, 2018
Equivalent citations: AIRONLINE 2018 KAR 2523
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NOs.20352-20354/2010(L-TER)
BETWEEN:
1. Sri K. Manjunatha,
S/o. Late K.S. Kempashetty,
Aged about 43 years,
No.2370/2, Kalkunike,
Karjan Street, Hunsur Town,
Mysuru District
2. Sri B.R. Ramachandra,
S/o. Late R. Rangaiah,
Aged about 50 years,
No. MIG 290/A,
3rd Cross, 5th Main,
'H' Block,
Ramakrishnanagar
3. Sri B.T. Mohan, S/o. Thimmegowda,
Aged about 43 years,
Benagonahalli,
Chunchanakatte Hobli,
K.R. Nagar,
Mysuru District
... Petitioners
(By Sri K. Govindaraj, Adv.for R2 and R3)
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AND:
1. The District Registrar of Registration,
Room No.8. D.C. Office Buildings,
Mysuru.
2. The Principal Secretary,
Revenue Department,
Government of Karnataka,
M.S. Building,
Bengaluru-560 001
... Respondents
(By Sri H.S. Vivekananda, Adv., for R1;
Sri Keerti Kumar Naik, AGA for R2)
***
These Writ Petitions are filed under Articles 226
and 227 of the Constitution Of India, praying to quash
the award passed by the Labour Court, Mysuru in
Reference No.89/2003 dated 13.01.2010 produced as
Annexure-F and consequently issue a writ of
mandamus or any other appropriate writ directing the
respondents to reinstate the petitioners with all
consequential benefits such as back wages, continuity
of service etc.
These Petitions coming on for Hearing, this day,
the Court made the following:
ORDER
In these writ petitions the petitioners have prayed for a writ in the nature of certiorari quashing 3 the award passed by the Labour Court, Mysuru in Reference No.89/2003 dated 13.01.2010 at Annexure-F and consequently direct the respondents to re-instate the petitioners with all consequential benefits.
2. The case of the petitioners is that they were working on daily wage basis in the 1st respondent- establishment and they so worked continuously for more than 240 days. Thereafter their services came to be illegally terminated on 01.07.1996, 30.08.1997 and 02.09.1997, respectively, without payment of any compensation or issuance of any notice. Aggrieved by the said action of termination, the petitioners approached the Labour Court. The Labour Court came to a conclusion that these petitioners were not workmen as defined under Section 2(s) of the 4 Industrial Disputes Act, 1947 (for short 'Act'). It is case of the petitioners that they should not have been terminated from their services.
3. In support of their case, the petitioners got examined themselves as WW1 to WW3, respectively and got marked Exs.W1 to W63. The respondents on their behalf got examined one witness as MW1 and marked documents at Exs.M1 to M7. The Labour Court opined that the petitioners have not established their case and in fact, the 1st respondent - II party is not an "industry".
4. Learned counsel for the petitioners submitted that work of the petitioners and the regular employees of the 1st respondent were of similar in nature. 5 Therefore, the benefit should be extended for these petitioners also as that of the regular employees.
5. Learned AGA for the respondents submitted that the petitioners were engaged by the 1st respondent on a temporary basis due to pressure of work and they cannot be treated as regular workmen. Under these circumstances, the Labour Court has rejected the reference made under Section 10(1)(c) of the Act, which cannot be interfered.
6. I have heard the learned counsel for both the parties.
7. As per Ex.W1 issued by the District Registrar, Mysuru in all 21 candidates have been appointed including the petitioners and they were paid Rs.200/- per month as salary. It is clear from Ex.W1 that the 6 appointment was on a temporary basis, just to reduce burden of work of the exiting permanent workmen of the respondent establishment, which was due to vacant position of the posts and that their appointment shall not be continued on any count.
8. Ex.W3 is a Certificate issued by the Sub- Registrar, Mysuru South in favour of 2nd petitioner- B.R. Ramachandra to the effect that he worked from 10.07.1995 to 30.08.1997. Ex.W4 is a similar Certificate issued in favour of B.T. Mohan, who served from 03.07.1993 to 01.07.1996.
9. Learned Judge of the Labour Court observed that as per the provisions of Section 2(s) of the Act the services of the petitioners was only a seasonal work and not continuous or permanent in nature. Even 7 though the exhibits produced on behalf of the petitioners showed that they served for more than 240 days, as per Ex.W1, their appointment was just for a temporary period. Further, Exs.W5 and W6 pertain to the temporary workmen appointed under Ex.W1 and these registers have been maintained separately for the candidates who have been appointed under Ex.W1. It can be seen from the documents produced that these petitioners were appointed as un-skilled labourers to work in the Sub-Registrar's Office for the purpose of cleaning and to do some seasonal work and at any stretch of imagination it cannot be said that they were the workmen as defined under Section 2(s) of the Act and having regard to the fact that the documents are being registered in the office of the Sub-Registrar where actually petitioners were engaged, at any stretch of imagination, it cannot be 8 said that the 1st respondent establishment was an 'industry' as defined under Section 2(j) of the Act. It is made clear from Ex.W1 the appointment of 21 candidates including the petitioners was purely on temporary basis and their appointment for any reason will not be continued. Therefore, the petitioners cannot claim re-instatement as a matter of right. Further, it is clear from Ex.W1 that appointment of 21 candidates including the petitioners was due to pressure of work in the 1st respondent-establishment for having kept vacant the posts of Second Division Assistants and 'D' group employees and these petitioners have not been appointed as against the existing vacancy in the 1st respondent-establishment. Under the guise of reinstatement, the services of the petitioners cannot be regularized as against the existing posts.
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10. Section 2(j) of the I.D. Act reads as under:
" 'industry' means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not,-
(i) any capital has been invested for the purpose of carrying on such activity; or
(ii) such activity is carried on with a motive to make any gain or profit, and includes-
(a) any activity of the Dock Labour Board established under section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948) 10
(b) any activity relating to the promotion of sales or business or both carried on by an establishment, but does not include-
(1) any agricultural operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.
(2) hospitals or dispensaries; or (3) educational, scientific, research or training institutions; or (4) institutions owned or managed by organisations wholly or substantially engaged in any 11 charitable, social or philanthropic service; or (5) khandi or village industries; or (6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space; or (7) any domestic service; or (8) any activity being a profession practised by an individual or body of individuals, if the number of persons employed, by the individual or body of individuals in relation to such profession is less than ten; or (9) any activity, being an activity carried on by a co-operative society or a club or any other like body of individuals, if the number 12 of persons employed by the co-
operative society, club or other like body of individuals in relation to such activity is less than ten;
11. Section 2(s) of the I.D. Act reads as under:
"'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 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 13 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 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."14
12. Sections 2(j) and (s) of the Act as extracted above makes it clear that relationship between the petitioners and the 1st respondent-establishment is not as workmen and employer. The 1st respondent is a Department of State Government. Under these facts and circumstances, I hold that the reasons assigned by the Labour Court are just and proper and no grounds are made out by the petitioners to interfere with the same.
13. Accordingly, writ petitions are hereby rejected.
Sd/-
JUDGE Sbs*