Allowed

The Management of v. Jayapal

Karnataka HC13 Sept 2023WP/103452/2016

Case brief

AI extract

What is this about?

This writ petition challenged a Labour Court award that reinstated a trainee driver cum conductor. The Karnataka High Court allowed the petition, setting aside the award because established precedent holds that a trainee is not a 'workman' or 'corporation servant' entitled to relief under the Industrial Disputes Act.

What did the court decide?

The award of the Labour Court is set aside; the Corporation's order removing the respondent's name from the list of Trainee driver cum conductor is restored.

The Management of Vs Jayapal — Pension and Retirement Benefits | Karnataka HC (2023)

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NC: 2023:KHC-D:11755 WP No. 103452 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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WRIT PETITION NO. 103452 OF 2016 (L-KSRTC)

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BETWEEN:

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THE MANAGEMENT OF N.W.K.R.T.C., NOW R/BY ITS THE CHIEF LAW OFFICER, NWKRTC, GOKUL ROAD, HUBBALLI.

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… PETITIONER

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(BY SMT. VEENA HEGDE, ADVOCATE)

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AND:

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JAYAPAL S/O DEVENDRAPPA UPPAR, AGE: 38 YEARS OCC: R/O PO: KARIKATTI, TQ: SAVADATTI, DIST: BELGAUM.

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… RESPONDENT

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Digitally signed byVISHAL VISHAL NINGAPPA NINGAPPA PATTIHAL PATTIHAL Date: 2023.10.11 11:29:27 +0530

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(BY SMT. KALPANA J.M., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICELS 226 AND 227 OF THE CONSTITION OF INDIA, PRAYING TO ISSUE A WRIT DIRECTION OR ORDER INCLUDING A WRIT OF CERTIORARI QUASHING THE AWARD DATED 28.10.2014 PASSED BY THE PRESIDING OFFICER LABOUR COURT, HUBALI, IN KID.NO.83/2013 COPY OF WHICH IS PRODUCED AS ANNEXURE-C.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner NWKRTC (hereinafter referred to

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as “Corporation” for short) is before this Court calling in question an award of the Labour Court dated 28.10.2014.

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Heard the learned counsel Smt.Veena Hegde

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appearing for the petitioner and the learned counsel Smt.Kalpana J.M. for the respondent.

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Facts in brief, germane, are as follows:

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The respondent is appointed as a trainee driver

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cum conductor in the Corporation on 23.10.2008. The respondent remains unauthorizedly absent without seeking any prior permission from the Corporation from 30.07.2011. Owing to the continuous unauthorized absence, the respondent comes to be dismissed from service on 23.01.2013. This is challenged before the Labour Court by the workman – respondent. The Labour Court by its order dated 28.10.2014 sets aside the enquiry conducted against the petitioner in KID No.83/2013 directs the Corporation to reinstate the workman into service without backwages and without continuity of service. The

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petitioner – Corporation has called the said order in

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question in the subject petition.

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The learned counsel Smt.Veena Hegde submits that the respondent is a trainee conductor and cannot be construed to be a workman under the provisions of the Industrial Disputes Act and therefore, the claim before the

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Labour Court was not even maintainable. If it is not maintainable, it is the submission that all further actions would be nullity in law. He would seek to place upon the judgment of the Division Bench in W.A. No.1039/2022 dated 30.11.2022.

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On the other hand, the learned counsel for the respondent would seek to justify by production of a circular or order which implements a judgment in W.A. No.100655/2017 which was also concerning a trainee driver cum conductor. She would seek parity with the said implementation.

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I have given my anxious consideration to the submissions made by the respective counsel and have perused the material on record.

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The dates narrated hereinabove lie in a narrow

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compass. The respondent was appointed as a trainee driver cum conductor and remains unauthorizedly absent and suffers an order of dismissal from service pursuant to departmental enquiry. The respondent approaches the Labour Court in KID No.83/2013 and the Labour Court sets aside the order of penalty and directs reinstatement without backwages and without continuity of service. The tenability of entertainment of the claim by the Labour Court is what is required to be considered. As according to the learned counsel for the Corporation, a trainee is not a workman. If he is not a workman, the dispute before the Labour Court was not maintainable. The issue need not detain this Court for long of delve deep into the matter. A Division Bench in the case of W.A. No.100655/2017 has held as follows:

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“4. On a reading of the same, it is not discerned as to what was the reason for taking such a long time to process the matter and to take a decision to file this appeal. Thus, there is no explanation whatsoever seeking condonation

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of delay in preferring this appeal. In the absence of there being any explanation as such seeking condonation of delay, the need to consider as to whether the delay caused is due to sufficient cause or reasons would not arise. Such delays cannot be camouflaged as bona fide administrative delays. In the circumstances, we find no reason to condone the delay of 412 days in filing. this appeal. Even otherwise, there was a delay of more than five years in assailing the award passed by the Labour Court before this Court. In the fact, the writ petition was rejected on the ground of delay and laches. In the circumstances, I.A. No.1/2017 is rejected.

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In support of our order, we place reliance on a judgment of the Hon'ble Supreme Court in the case of Office Of The Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr. reported in AIR 2012 SC 1506 wherein at paragraph 13, it has been observed as under:

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"13. In our view, it is the right time to Inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that

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the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."

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6. Even on merits, we find that the learned single Judge has rightly observed that when the appellant herein did not choose to tender any evidence before the Labour Court, it cannot have any grievance with regard to the order passed by the Labour Court. Even otherwise, the respondent, who had remained absent from

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19.11.2009 to 14.10.2010, had produced the medical certificate at Ex.W2 stating that his child having died, he was not in a position to attend office. Even though the said absence was without authorization, nevertheless, in the absence of any evidence let-in by the appellant herein to prove the misconduct as against the respondent, the leaned single Judge was right in approving the award of the Labour court and granting the benefit of reinstatement only. In the circumstances, the appeal also being devoid of merits is dismissed.

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In view of dismissal of the appeal, I.A. No.2/2017 also stands dismissed.”

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In the light of the judgment of the Division

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Bench, as also the settled principle that the trainee is not the workman, the order of the Labour Court is rendered unsustainable. It is also germane to notice, an order passed by this Court in W.P. No.51522/2015 again concerning a trainee driver cum conductor. This Court has held as follows:

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“6. The learned counsel appearing for the Corporation would contend that the dispute before the Labour Court itself was not

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maintainable as a Trainee driver cum conductor is not a workman in terms of the Regulations of the Corporation and a dispute by a Trainee driver cum conductor contending that he is a workman under the Act was unfounded. She would place reliance upon the following judgments of the Division Bench of this Court:

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1. Santhosh K. Menasinkai V. KSRTC W.A.No. 100369/2014 2. KSRTC vs. Raju S. Jaydi - W.A.No.100383/2014 3. K. Ravikumar Vs. KSRTC - W.A.No.100591/2015

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7. I have given my anxious consideration to the submissions made by the learned counsel appearing for the corporation and have perused the material on record.

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8. The workman was appointed as Trainee driver cum conductor on 08.03.2008 and began remained unauthorisedly absent from 02.12.2009 which culminated in removal of his name from the Role of Trainee driver cum conductor by an order of the corporation dated 10.02.2012. The workman raised an industrial dispute against the order of removal. The Labour Court held that the enquiry conducted by the Corporation was not fair and proper in

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the light of the fact that the workman was placed exparte and gave liberty to the Corporation to lead evidence and establish the charge before the Labour Court.

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9. The Corporation led evidence before the Labour Court and also contended that the dispute was not maintainable as he is not the workman in terms of the regulation which would attract the provisions of the Act for him to raise a dispute. The fact that the workman was still a Trainee driver cum conductor in the Corporation at the time when he was removed from the role is not in dispute as the workman himself admits before the Labour Court in Cross-examination. which is extracted for ready reference:

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ನನ�� ವ� ��ವ �ಂ�ತ �ಸ�ೃ ನನ� �ರಣ �� ದ� �ೕ��ನ ಪ� !ೕ" ನನ� �ೕಡ$ ��%"& ಎಂ(ದ�� ಒ*+ ,-ೕ. . ಇ& !ಎಂ -2 ಆ12 .. !ಎಂ -2 �ೕ�� 3� ��%ವ ಜ5( !ೕ" ಈಗ 8ೕ9�%ವ :ಖ< ಆ1&� ಇದ�� !ಎಂ -3' ಎಂ(ದ�� ಒ*+ ,-ೕ. . ನನ� ವ=>ಶದಪ� !ೕ"ಈಗನನ��ೕಡ$ ��%ವ :ಖ< ಆ12 ಎಂ(ದ�� ಒ*+ ,-ೕ. . ಇ& !ಎಂ -4

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ಆ12 , ವ�>ಶ@ಂA� ನನ� �BC ಒಂ& ಂಗಳ �ಬಳವ�� FG Hಲಕ ಕKL��M- ಎಂದN 3�,�&�ಂOಲP ."

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10. The Labour Court not-withstanding the fact that he was not a workman in strict sense of the term allows the dispute holding that the removal of the name of the workman from the Roles of Trainee driver cum conductor amounts to imposition of major penalty of removal and concludes that it is disproportionate to the proved misconduct. Relevant reasoning of the Labour Court at paragraph 17 reads as follows:

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17. No suggestion is made to M.W.2 on behalf of the workman that he had given leave application before staying away from duty. No suggestion is made that the workman was suffering from ailment. Even the workman has not produced any material before the Court that he was suffering from ailment. In the absence of any suggestion made to M.W.2 one has to conclude that the workman had not at all applied for leave in writing. According to the corporation, the period of absenteeism is from 02.12.2009 till the date of removal i.e., 10.02.2012, say for more than 2 years"

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The finding of the Labour Court in the

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aforesaid paragraph is that the workman

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has not at all applied for leave in writing, having held so the Labour Court feli in error by setting aside the order removal of the name of the workman from the select list of Trainee driver cum conductor on the ground that it is disproportionate to the proved misconduct. It is opposite to refer to the Division Bench Judgments of this Court in the case of Santhosh K. Menasinkai in W.A.100369/2014 dated 18.08.2014 wherein the Division Bench has held as follows:

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"5. Indisputable, appellant was called upon to undergo training as a conductor when his name was included in the selected list of conductors. Sub Regulation (1) of Regulation 10 of the KSRTC (Cadre and Recruitment) Regulation (for short C and R Regulations') disentitles a person in the select list to appointment to a vacant post of conductor. Inotherwords, appellant's name though found in the selected list, is not a Corporation Servant entitled to an order of appointment to a vacant post of conductor. Appellant was directed to report for training programme. On his failure to report for training is liable to have his name

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removed from the list of conductors on training in terms of Regulation 12(2) of the Regulations. Therefore, appellant cannot claim a right to an appointment to the vacant post of conductor before successful completion of training as required by C & R Regulations'. In the absence of an order of appointment to the vacant post of conductor, appellant did not fall within the definition of the term 'Corporation Servant under the KSRTC Servants (C&D) Regulations, 1971. Appellant being a trainee conductor, therefore, is not a 'corporation Servant'. It is needless to state that if the appellant is not a 'corporation servant' is not a workman, hence not entitled to a relief under the I.D.Act, which aspect is not considered by the Labour Court."

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11. Later, another Division Bench in the case of KSRTC Vs. Raju S. Jaydi in W.A.No.100383/2014 dated 15.10.2014 has held as follows:

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"5. On going through the material on record and the regulations mentioned supra, we are of the opinion that the matter in question is fully covered by the judgment of this Court dated 18.08.2014 in

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W.A.No.100369/2014. The Division Bench while deciding the said writ appeal has considered various aspects and ultimately concluded that the trainee conductor cannot be equated to a Conductor regularly appointed after completion of the training course. We agree with the said conclusion reached by the Co-ordinate Division Bench in W.A.No. 100369/2014. Hence, the order passed by the learned Single Judge in W.P.No.79360/2013 is liable to be set aside. Accordingly, the same is set aside. Writ appeal is allowed."

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The afore extracted judgments of the learned Division Bench was carried in SLP before the Apex Court and the Hon'ble Apex Court by its order dated 31.07.2017 declined to grant leave and dismissed the Special Leave petition. 12. Subsequently, it is also germane to notice that the subsequent Division Bench judgment in the case of Sri. K. Ravikumar Vs. KSRTC in W.A.100591/2015 dated 09.12.2019 after following the afore extracted judgments of the Division Bench has held as follows:

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"7. So far as submission made by the leaned counsel for appellant that his name does not appear in the list of trainee conductor is concerned, suffice it to say that the appellant has not produced any document to show as to on which date his services were regularized and was posted as conductor on substantive basis. Therefore, mere non-mentioning of the name of the appellant in the list of trainee by the respondent would not make him a conductor on substantive basis.

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8. So far as reliance placed by the appellant on the decision of Division Bench of this Court in W.A.No.101195/2016 is concerned, it is pertinent to mention here that in the aforesaid decision, this Court has upheld the order of the learned Single Judge as well as the validity of the departmental enquiry, which pertain to an accident caused by the driver. The aforesaid decision does not apply to the case of the appellant. The appellant admittedly being a trainee conductor, the Regulations do not apply to his case. No case for interference with the order passed by the learned Single

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Judge is made out. In the result, the writ appeal fails and is hereby dismissed."

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13. In the light of the law laid down in the judgments of the Division Bench of this Court (Supra) the award of the Labour Court becomes clearly unsustainable as the Labour Court holds that the workman was a regular employee of the corporation and deals with the matter as if he was regular employee and directs reinstatement to the place that he was holding immediately before the order of dismissal. The award of the Labour Court is per se contrary to the law and requires to be set aside.

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In the light of the aforesaid orders passed by

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the Division Bench and that of this Court supra, the award of the Labour Court is rendered unsustainable. The unsustainability would lead to its obliteration.

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