Dismissed

The Divisional Controller v. Sri S v Itnala

Karnataka HC13 Jan 2023WP/35900/2018

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed a petition seeking to quash orders granting gratuity to a reinstated badli employee. The Court held that a badli worker whose termination was set aside by the Apex Court remained in continuous service, warranting gratuity calculation from the original date of employment. Accordingly, the writ petition was dismissed, and the Corporation was directed to pay the awa

What did the court decide?

Pensioner ordered to receive gratuity amount plus interest as directed by Appellate Authority within three months.

The Divisional Controller Vs Sri S v Itnala — Pension and Retirement Benefits | Karnataka HC (2023)

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WP No. 35900 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO. 35900 OF 2018 (L-KSRTC)

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BETWEEN:

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THE DIVISIONAL CONTROLLER BMTC, SOUTH DIVISION, KH ROAD, BENGALURU HEREIN REPRESENTED BY THE CHIEF LAW OFFICER, BMTC, CENTRAL OFFICES, KH ROAD, SHANTHINAGARA, BENGALURU - 560 027

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…PETITIONER

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(BY SRI. SRINIVAS, ADVOCATE FOR SRI. SANJEEV B L.,ADVOCATE)

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AND:

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Digitally signed by POORNIMA SHIVANNA Location: HIGH COURT OF KARNATAKA

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SRI S V ITNALA S/O. LATE. VEERAPPA BASAPPA ITNALA, AGED ABOUT 62 YEARS

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R/O. HOSALINGEGOWDARA BEEDHI, RAMANAGARA ROAD, KANAKAPURA, RAMANAGARA DISTRICT - 562 157

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THE LABOUR OFFICER AND CONTROLLING AUTHORITY UNDER PAYMENT OF GRATUITY ACT,

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BANGALORE SUB-DIVISION-2, KARMIKA BHAVAN, BANNERGHATTA ROAD,

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BENGALURU - 560 029

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THE ASSISTANT LABOUR COMMISSIONER AND APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, BENGALURU SUB DIVISION 2, KARMIKA BHAVAN, BANNERGHATTA ROAD, BENGALURU - 560 029

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…RESPONDENTS

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(BY SRI. L SHEKAR, ADVOCATE FOR R1; SRI. BHOJEGOWDA T KOLLER, AGA FOR R2 & R3)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION, QUASHING THE ORDER DTD 30.11.2017 PASSED BY THE LABOUR OFFICER AND CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, SUB-DIVISION-2, BENGALURU (RESPONDENT NO.2) IN NO.LOB-2/PGA/CR79/2017 (ANNEXURE-A) AND THE ORDER DATED 25.04.2018 PASSED BY THE ASSISTANT LABOUR COMMISSIONER AND APPELLATE AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT, DIVISION-2, BENGALURU (RESPONDENT NO.3) IN NO.ALB-2/APGA/CR-96/2017-18 (ANNEXURE-B); b) GRANT SUCH OTHER RELIEFS THAT MAY BE DEEMED FIT BY THIS HON'BLE COURT, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

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WP No. 35900 of 2018

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner - Corporation formed under Road Transport Corporation Act, 1950 has filed this petition seeking for the following reliefs:

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"i) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction, quashing the order dated 30.11.2017 passed by the Labour Officer and Controlling Authority under the Payment of Gratuity Act, Sub-Division-2, Bengaluru (Respondent No.2) in No.LOB-2/PGA/CR-79/2017 (Annexure-A) and the order dated 25.04.2018 passed by the Assistant Labour Commissioner and Appellate Authority under the payment of Gratuity Act, Division-2, Bengaluru (Respondent No.3) in No.ALB-2/APGA/CR-96/2017-18 (AnnexureB).

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ii) Grant such other reliefs that may be deemed fit by this Hon'ble Court, under the facts and circumstances of the case, in the interest of justice and equity."

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Respondent No.1-Workman was selected by the petitioner-Corporation as Badli conductor on

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20.01.1982 and was removed from the Badli list on

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04.06.1982 along with other Badli workmen. The same having been challenged by a similarly situated workmen, the Hon'ble Apex Court finally in the judgment in the case of S. Govindaraju Vs. K.S.R.T.C. & Anr reported in AIR 1986 SC 1680 directed the reinstatement of badli workman with back wages and other benefits. In pursuance of the said judgment which was rendered on 15.04.1986, the petitioner-Corporation reinstated the respondent - workman on 31.01.1987 and placed him on probation on 12.07.1989 and subsequently he retired from service on 30.06.2014.

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The Road Transport Corporation taking into consideration, the services from 12.07.1989 had made payment of gratuity amount. It is aggrieved by the non consideration from 21.09.1982 to 12.07.1989, that the workman sought for the

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WP No. 35900 of 2018

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difference of gratuity amount of Rs.2,42,827/- with interest.

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The Controlling Authority, after complying with the due process and hearing the parties, partly accepted the contention of the workman. The Controlling Authority took into consideration the date of service from 31.01.1987 and determined the gratuity for 27 years and 5 months at Rs.5,10,772/- and directed Road Transport Corporation to make payment of the due amounts with 10% interest.

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Aggrieved by the same, the workman challenged the order of the Controlling Authority before the Appellate Authority by filing an application under Section 7(7) of the Payment of Gratuity Act, 1972. The Appellate Authority by its order dated 25.04.2018, taking into consideration that the workman had been appointed in the year 1982, determined the gratuity for the said period of 32

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years 9 months and allowed the appeal filed by the workman. It is aggrieved by the said order that the Road Transport Corporation is before this Court.

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Sri.Srinivas, learned counsel appearing for the Road Transport Corporation would submit that the workman being a badli worker i.e., being a spare employee was not a workman on the roles of the Road Transport Corporation and as such, it is only on the declaration of the probation that he would become the workman and as such, gratuity would be liable to be calculated from 12.07.1989 which has been lost sight by both Controlling Authority and Appellate Authority. He relies upon the decision of the Hon'ble Apex Court in the case of Lalappa Lingappa

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and Ors. Vs. Laxmi Vishnu Textile Mills Limited reported in LAWS(SC)-1981-2-18. More particularly, Paragraph No.18 which is reproduced hereunder for easy reference:

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"18. The Report of the Badli Labour Enquiry Committee, Cotton Textile Industry, 1967, no doubt shows that the badli employees are an integral part of the textile industry and that they enjoy most of the benefits of the permanent employees; but there may not be any continuity of service as observed by this Court in the Delhi Cloth Mills' case (supra). The badli employees are nothing but substitutes. They are like 'spare men' who are not 'employed' while waiting for a job : Conlon v. Glasgow. Vallabhdas Kanji (P) Ltd. v. Esmail Koya & Ors. taking the view to the contrary, does not appear to lay down a good law. Accordingly, we uphold the view that the badli employees are not covered by the substantive part of the definition of 'continuous service' in s.2(c), but came within Explanation I and, therefore, are not entitled to payment of gratuity for the badli period, i.e. in respect of the years in which there was no work allotted to them due to their failure to report to duty ."

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By relying on the above, he submits that since there was no work allotted to workman from 04.06.1982 to

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31.01.1987, there is no requirement of making payment of any gratuity amount and as such, the order passed by the Appellate Authority is bad in law.

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He further submits that there is delay in filing the application before the Controlling Authority and this

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delay would go to the root of the matter and as such, the Controlling Authority could not have considered the matter.

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Per contra, Sri.L.Shekar, learned counsel for respondent No.1 workman would submit that workman has been reinstated pursuant to the directions of Hon'ble Apex Court in the case of

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S. Govindaraju's case stated supra and the Hon'ble Apex Court having categorically stated that back wages and other benefits have to be paid, the workman having given up a claim as regards back wages voluntarily with an intention to resolve the matter, the Corporation ought to have made payment of all other benefits. These factors have been taken into consideration by the Appellate Authority and as such, he submits that there is no requirement for this Court to intercede in the matter.

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WP No. 35900 of 2018

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Heard Sri.Srinivas, learned counsel appearing for the petitioner, Sri.L.Shekar, learned counsel for respondent No.1 and Sri.Bhojegowda T. Koller, learned AGA for respondent Nos.2 and 3 and perused the papers.

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The relevant paragraph in S. Govindaraju's case stated supra in paragraph No.7 is reproduced herein for easy reference:

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"7. The Karnataka State Road Transport Corporation is a statutory authority constituted under the Road Transport Corporation Act, 1950. The Corporation has framed Regulations (Karnataka Road Transport Corporation Cadre & Recruitment Regulations) 1982 regulating the conditions of service of its employees. These regulations are statutory in nature having been framed under sec. 45(2)(c) of the Road Transport Corporation Act. Admittedly the appellant was selected by the Selection Committee constituted under the aforesaid Regulations and his name was included in the select list prepared for the purpose of appointment as Conductor as and when vacancy would arise. His name was also included in the Badli list of workers and in pursuance thereof he was given employment. There is no dispute that the appellant was allowed to be in continuous service for a period of more than one year

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and while he was in continuous service the impugned order of termination was issued in accordance with Regulation 10(5). The relevant provision of Regulation 10(5) provides that during temporary/Badli appointment a candidate if terminated/removed from service as unsuitable for the post he will forfeit his chance for the appointment in terms of his selection. There is no dispute that the appellant's services were terminated on the ground of his being found unsuitable for the appointment and as a result of which his name was deleted from the select list, and he forfeited his chance for appointment. Once a candidate is selected and his name is included in the select list for appointment in accordance with the Regulations he gets a right to be considered for appointment as and when vacancy arises. On the removal of his name from the select list serious consequence entail as he forfeits his right to employment in future. In such a situation even though the Regulations do not stipulate for affording any opportunity to the employee, the principles of natural justice would be attracted and the employee would be entitled to an opportunity of explanation, though no elaborate enquiry would be necessary. Giving an opportunity of explanation would meet the bare minimal requirement of natural justice. Before the services of an employee are terminated, resulting into forfeiture of his right to be considered for employment, opportunity of explanation must be afforded to the employee concerned. The appellant was not afforded any opportunity of explanation before the issue of the impugned order consequently the order is rendered null and void being inconsistent with the principles of natural

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justice. We accordingly allow the appeal and set aside the order of the High Court and also the order of termination and direct that the appellant shall be treated in service and be paid his back wages and other benefits. The appeal is allowed with costs."

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A perusal of the above judgment would clearly indicate that the order of termination of a Badli worker was set aside and a direction was issued that the Badli worker shall be treated as in service and be paid back wages and other benefits. In my considered opinion, the usage of words "other benefits" would mean consequential benefits and all benefits that are available to the workman to be paid by the Corporation.

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The judgment relied upon by Sri.Srinivas, learned counsel in Lalappa Lingappa's case stated supra, in my considered opinion would not be applicable to the present case since in that matter the workman was not allotted work on account of the failure of workman to report to duty.

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In the present case, there is no failure on the part of

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the workman to report to duty. It is on account of removal of the workman from the Badli list that the workman could not carry out his duties post 04.06.1982. The Hon'ble Apex Court having set aside the order of termination by way of removal of workman from badli list, the Road Transport Corporation had complied with the said order of the Hon'ble Apex Court by including the workman in its Badli list on 31.01.1987 and placed on probation on 12.07.1989.

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Needless to say that the workman reported to work post 31.01.1987 and was discharging his functions. Thus, the reason why the workman could not report to work on 31.01.1987 was the order of the Road Transport Corporation dated 04.06.1982 which is set aside by the Hon'ble Apex Court. The Hon'ble Apex Court having directed payment of back wages and

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other benefits, the order of termination having been set aside would amount to the order of termination not having ever been passed that is to say that the respondent workman continued in services from 20.01.1982 and continued to be on Badli list without reference to the order dated 04.06.1982.

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That being a case, the confirmation having been made on 12.07.1989 is a consequence of the order passed by the Hon'ble Apex Court. In view thereof, I am of the considered opinion that the order passed by the Appellate Authority taking into consideration the date of appointment as was 20.01.1982 and directing the payment of gratuity is proper and correct and does not require any interference. As such, I pass the following:

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ORDER

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i) Writ petition is dismissed.

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ii) Petitioner-Corporation is directed to make payment of the due amounts as directed by the Appellate Authority within a period of three months from the date of receipt of copy of this order.

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Sd/JUDGE

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MDS

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List No.: 1 Sl No.: 13

The Divisional Controller v. Sri S v Itnala

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The Divisional Controller v. Sri S v Itnala

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