Allowed

The Management of v. Engineering and General Works Union

Karnataka HC14 Oct 2022WP/12601/2022

Case brief

AI extract

What is this about?

In a writ petition, the High Court of Karnataka quashed orders of the Industrial Tribunal that directed the reinstatement of workmen. The Court held that a subsequent application for the same relief was not maintainable as earlier applications on identical issues had already been disposed of by this Court, making the Tribunal’s contrary action unsustainable.

What did the court decide?

The writ petition is allowed and a certiorari is issued quashing the impugned order dated 18.11.2021 passed on IA No.4/2017. Subsequent order dated 16.05.2022 is also quashed. Industrial Tribunal dire

The Management of Vs Engineering and… — Labour and Industrial Disputes | Karnataka HC (2022)

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WP No. 12601 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF OCTOBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO. 12601 OF 2022 (L-RES)

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BETWEEN:

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THE MANAGEMENT OF CSIR-NATIONAL AEROSPACE LABORATORIES KODIHALLI CAMPUS, BENGALURU-560017 REP. BY ITS DIRECTOR

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...PETITIONER

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(BY SRI. ANOOP HARANAHALLI, ADVOCATE)

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AND:

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ENGINEERING AND GENERAL WORKS UNION “GHATE BHAVAN”, VYALIKAVAL GAYATHRI DEVI PARK EXTENSION BENGALURU-560003 REP. BY ITS PRINCIPAL SECRETARY

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… RESPONDENT

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(BY SRI. V.R. DATAR, ADVOCATE)

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Digitally signed by POORNIMA SHIVANNA Location: HIGH COURT OF KARNATAKA

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THIS WRIT PETITION IS FILED UNDER SECTION 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 18.11.2021 AT ANNEXURE-A ON IA NO.4 UNDER SECTION 11 OF THE INDUSTRIAL DISPUTES ACT, 1947 PASSED BY THE INDUSTRIAL TRIBUNAL, BENGALURU IN ID NO.137/2017 AND ETC.

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THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING BEEN RESERVED FOR ORDERS ON 12.08.2022, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking for the following reliefs:

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a) Issue a writ of Certiorari quashing the impugned order dated 18.11.2021 at Annexure-A on IA No.4 under Section 11 of the Industrial Disputes Act, 1947 passed by the Industrial Tribunal, Bengaluru in ID No.137/2017.

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b) Issue a writ of Certiorari quashing the impugned order dated 16.05.2022 at Annexure-A1 passed by the Industrial Tribunal, Bengaluru in ID No.137/2017.

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c) Grant such other reliefs as this Hon’ble Court may deem fit in the facts and circumstances of the case in the interest of Justice and Equity.

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The petitioner is CSIR-National Aerospace laboratory, Bengaluru which is a constituent laboratory of the Council of Scientific & Industrial Research, an autonomous body under the administrative control of Ministry of Science and Technology which is registered as a Society under the Societies Registration Act, 1860.

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The petitioner recruited its employees on the basis of advertisement issued from time to time and when

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WP No. 12601 of 2022

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contracts are awarded to the petitioner, the same would be required to be completed in a timebound manner. The petitioner depending on the exigencies of the circumstances seeks for workmen through contracting agencies to assist permanent employees for short periods of time. The workmen deployed through contracting agencies are classified into four categories viz., unskilled, skilled, semi-skilled and unskilled but are not direct employees of the petitioner.

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It is contended that respondent is a Union representing the workmen deployed by such contracting agencies. The respondent-Union had filed statement of claim before the Industrial Tribunal which came to be numbered as ID No.137/2017 seeking interalia to grant permanency to 27 workmen who are members of the respondent Union from the date of their appointment and appropriate

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scale of pay and other reliefs. Objections were filed to the said petition.

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The respondent filed an application under Section 11 of the Industrial Disputes Act, 1947 [for short ‘ID Act’] which came to be numbered as IA-2/2018 seeking for a direction to the petitioner not to alter the service conditions of the workmen or terminate the services during the pendency of the dispute before the Industrial Tribunal, Objections were filed to the said application.

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The Tribunal was pleased to allow the application vide order dated 31.03.2018 directing the petitioner to maintain status-quo and restrain the petitioner from terminating the workmen from services till pendency of the dispute.

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The respondent also preferred another application on 7.07.2018 under Section 11 of the ID Act which came to be numbered as IA-3/2018 seeking for a

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direction to restore the services of Smt.Kalaiselvi, Objections having been filed, the Tribunal allowed the said application on 5.10.2019 directing the petitioner to take Smt.Kalaiselvi into service to the post as she was working in till date of refusal of employment i.e. on 31.11.2017.

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The order dated 31.03.2018 on IA-2 and order dated 5.10.2019 on IA-3 were challenged by the petitioner before this Court in W.P. No.357/2021, when interim order of stay was granted on 11.01.2021.

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While the interim order was in operation, the respondent preferred another application on 30.03.2021 under Section 11 of the ID Act which came to be numbered as IA-4/2021 once again seeking restoration of services of Smt.Kalaiselvi and One Madhusudhan.B.C, who were allegedly refused employment on 1.01.2021.

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While the said application was pending, this Court allowed W.P.No.357/2021 vide order dated 24.03.2021 quashing the order passed by the Tribunal dated 31.03.2018 on IA-2 and WA No.510/2019 on IA-3. The respondent-Union challenged the said order in a Writ Appeal which came to be numbered as W.A. No.521/2021 which was disposed vide order dated 14.07.2021 directing the continuation of status-quo by granting liberty to the petitioner to prefer an application for modification in respect of the workmen who are no longer working in the petitioner-Institution. The said order has attained finality the same not having been challenged.

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The Tribunal vide its order dated 18.11.2021 allowed IA-4/2021 directing the petitioner to restore the services of Smt.Kalaiselvi which could not be complied with by the petitioner since orders on IA-3 which was a similar application had attained finality

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by way of dismissal. It is aggrieved by the said order dated 18.11.2021 passed by the Tribunal on IA-4 that the petitioner is before this Court.

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Sri.Anup Haranahalli, learned counsel for the petitioner would submit that:

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12.1. Once IA-3 had been dismissed by this Court in W.P.No.357/2021 which has also been confirmed in W.A. No.521/2021 vide order dated 14.07.2021, the Tribunal could not have directed restoration of services of Smt.Kalaiselvi since the earlier application filed seeking for similar relief had been dismissed.

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12.2. The order passed by the Tribunal is after the order passed in W.P. No.357/2021 dated 24.03.2021 as also after the order passed in W.A. No.521/2021 on 14.07.2021 hence is completely unsustainable. The tribunal ought not to have allowed IA-4 on 18.11.2021 being

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aware of the orders passed in W.P.

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No.357/2021 and W.A. No.521/2021.

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12.3. The finding of the Tribunal that the workmen

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was working for and on behalf of the petitioner in the premise of the petitioner is completely

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erroneous, hence the service of the respondent-workman could never have been restored nor can she be reinstated in service.

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12.4. Once IA-3 had been filed for restoration of services of Smt.Kalaiselvi and the same was under challenge in W.P. No.357/2021, there was no question of filing another application in IA-4/2021 seeking for the very same reliefs, more so when the order passed on IA-3/2021 had been stayed by this Court vide interim order dated 11.01.2021.

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12.5. The application filed by the petitioner is completely contrary to law, unsustainable and

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ought to have been dismissed by the tribunal, instead of doing so, the Tribunal has allowed the said application and it is in that background that the petitioner is before this Court seeking for the aforesaid relief.

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Sri.V.R.Datar, learned counsel for the respondentUnion submits that:

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13.1. The statement of claim which had been filed espousing the cause of 27 workmen including Smt.Kalaiselvi and it is in that background IA-2 had been filed seeking for a direction to the petitioner not to alter the service conditions. It is after the Industrial dispute was raised and a claim petition was filed that Smt.Kalai Selvi was denied employment and it is in that background that an application in IA-3 was filed for restoration of services of Smt.Kalaiselvi.

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13.2. The Tribunal having allowed IA-3 on 5.10.2019, the petitioner complied with the same in the month of December 2019 and reported to the Tribunal on 27.01.2020 about the compliance of the order and thereafter she was issued entry pass and I.A. card which was renewed from time to time.

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13.3. Learned counsel relies on the salary slips from December 2019 to January 2021 to contend that the order of the Tribunal on IA-3 dated 5.10.2019 has been complied with. It is only thereafter that the petitioner challenged the orders passed by the Tribunal on IA-2 by filing W.P. No.357/2021 wherein an order of stay was granted on 11.01.2021. It is only thereafter that the petitioner abusing the interim order

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granted by this Court had denied the employment to Smt.Kalaiselvi on 1.02.2021.

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13.4. When Smt.Kalaiselvi was continuing in service an industrial dispute was raised being denied employment, IA-3 was filed and thereafter on reinstatement once again by misusing the interim orders passed in W.P. No.357/2021 when Smt.Kalaiselvi denied employment on 1.02.2021, the application in IA-4 for restoring the services of Smt.Kalaiselvi was filed on 30.3.2021.

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13.5. He submits that the order passed on IA-3 and that passed on IA-4 are completely different. The orders passed on IA-3 was on account of denial of employment on 1.12.2017 whereas IA-4 has been filed for denial of employment on 1.02.2021. Therefore, the orders passed in W.P.No.357/2021 and W.A. No.521/2021 are not applicable to the present case.

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13.6. The order passed by the Tribunal on IA-4 is proper and correct, does not require any interference and that the writ petition is required to be dismissed.

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Heard Sri.Anoop Harnahalli, learned counsel for the petitioner and Sri.V.R.Datar, learned counsel for the respondent. Perused papers.

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The points that arise for determination of this court are:

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Whether IA-4 would have been maintainable separately when order have been passed on IA-3?

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Whether on account of the dismissal of both IA-2 and IA-3 by a learned Single Judge of this Court in W.P. No.357/2021 confirmed by the Division Bench of this Court in W.A. No.521/2021, could an application in IA-4 be filed and considered?

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Whether the order of the Tribunal suffers from any legal infirmity requiring interference by this Court?

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What order?

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I answer the above points as under:

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ANSWER TO POINT NO.1: Whether IA-4 would have been maintainable separately when order have been passed on IA-3?

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AND

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ANSWER TO POINT NO.2: Whether on account of the dismissal of both IA-2 and IA-3 by a learned Single Judge of this Court in W.P. No.357/2021 confirmed by the Division Bench of this Court in W.A. No.520/2021, could an application in IA-4 be filed and considered?

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17.1. This Court while deciding the challenge to the

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order dated 31.03.2018 on IA-2 and order dated 5.10.2019 on IA-3 has allowed the writ petition and set-aside the said orders by directing the Industrial Tribunal to make all necessary endeavors to decide the reference within a period of one year from the date of receipt of the order.

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17.2. The said order having been challenged in W.A. No.521/2021, the Division Bench of this Court has not interfered with the said decision except

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to observe that on account of the interim order of stay granted by the Division Bench, large number of employees are continuing in service which was not set-aside and directed the Tribunal to decide the lis on the basis of the evidence which was brought on record without being influenced by the order passed by the learned Single Judge or by the Division Bench.

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17.3. Though the learned Single Judge has vacated the order of status quo passed on IA-2, the Division Bench has continued the interim order of status-quo, but, however, refused to interfere with the order passed by the learned single Judge on IA-3 seeking for restoration of the services of smt.Kalaiselvi which order has been set-aside by the learned Single Judge.

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17.4. IA-4 is filed for restoration of services of Smt.Kalaiselvi though of course contending that

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it is on account of refusal of service to Smt.Kalaiselvi on 1.02.2021 i.e. after orders on

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IA-3 had been passed. The learned Single Judge of this Court while dismissing the W.P. No.321/2021 has directed the Tribunal to decide the matter as soon as possible within a period of one year and set-aside the order passed by the Tribunal.

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17.5. The very same reasoning would hold good even as regards IA-4 which would also involve consideration of evidence to be placed on record by the concerned workman and the employer to either establish or deny the employer employee relationship. Thus, in the teeth of the orders of the learned Single Judge in W.P.No. 357/2021, I am of the considered opinion that IA-4 could not have been considered by the Tribunal and as an extension this Court is required to apply the orders

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already passed in W.P. 357/2021 confirmed in W.A. No.521/2021.

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17.6. Though the order in W.P.No.357/2021 dated 24.03.2021 directing disposal of the writ petition within one year time and the Division Bench of this Court vide its order dated 14.07.2021 in W.A. No.521/2021 had directed expeditious disposal within a period of six months from that date, it is apparent that no such disposal has occurred by the Tribunal, precious time has been spent on the disposal of IA’s. Hence, it would also be required for necessary directions to be issued in that regard.

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17.7. I answer points No.1 and 2 by holding that IA-4 is not maintainable separately when orders have been passed on IA-3, by the single Judge of this Court confirmed by the division bench. On account of the dismissal of both IA-2 and

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IA-3 by a learned Single Judge of this Court in W.P. No.357/2021 confirmed by the Division Bench of this Court in W.A. No.521/2021, an application in IA-4 could neither have been filed and if filed ought not to have been considered by the Tribunal.

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18. ANSWER TO POINT No.3:Whether the order of the Tribunal suffers from any legal infirmity requiring interference by this Court?

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18.1. In view of the above, I answer point No.3 holding that the order of the Tribunal suffers from legal infirmities on account of the said order being contrary to the orders passed by the learned Single Judge of this Court in W.P. No.357/2021 dated 24.03.201, which has been confirmed in W.A. No.521/2021 dated 14.07.2021.

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18.2. IA-4 having been filed on 30.03.2021 subsequent to the orders passed in

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W.P.No.357/2021 setting-aside the orders

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passed on IA-3, the Tribunal could not have considered the said application under IA-4 dehors the orders passed by this Court in W.P.No.357/2021. Furthermore, by the time when the impugned order was passed, W.A. No.521/2021 had also been disposed of on 14.07.2021, thus four months thereafter on 18.11.2021 the tribunal ought not to have allowed I.A. 4.

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18.3. The interpretation of the Tribunal that the Tribunal shall decide the lis on the evidence brought on record is completely wrong inasmuch as what the Division Bench of this Court had directed was for consideration of the lis in finality and not on an Interlocutory Application.

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18.4. IA-4 filed for similar reasons seeking similar reliefs as that in IA-3, the Tribunal ought not to have considered the application and ought to have gone ahead with the merits of the matter as directed by the learned Single Judge and the Division Bench of this Court. As such, the said order is required to be set-aside.

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19. ANSWER TO POINT NO.4: What Order?

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19.1. In view of the answers to points No.1 to 3, I pass the following:

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ORDER

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i. The writ petition is allowed. A certiorari is issued quashing the impugned order dated 18.11.2021 at Annexure-A passed on IA-4 in ID No.137/2017. Consequently, the order dated 16.05.2022 at Annexure-A1 passed in ID No.137/2017 is also quashed.

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ii. The Industrial Tribunal is directed to consider

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the lis in ID No.137/2017 expeditiously and dispose of the matter on merits within six months from today uninfluenced by any observations made hereinabove, if necessary by taking up the matter on day to day basis.

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iii. The petitioner and the respondent shall cooperate with the Industrial Tribunal in compliance of this order. In the event of any non-compliance, the Presiding Officer of Industrial Tribunal can bring the same to the notice of this Court for necessary orders.

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iv. In view of the above, IA stands disposed of.

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Sd/JUDGE

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The Management of v. Engineering and General Works Union

Case brief

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The Management of v. Engineering and General Works Union

Case brief

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