Dismissed

Sri.B.P.Venkatesh v. the Management of

Karnataka HC27 Aug 2024WP/42836/2014

Case brief

AI extract

What is this about?

Workman terminated without notice sought backwages for 2008-2014 after the Labour Court ordered reinstatement with continuity of service but denied backwages, finding he failed to report to duty despite repeated Management calls to join. The Court found no independent evidence the workman was refused employment or kept away, upheld the denial of backwages.

What the court decided

AI extract

Sri.B.P.Venkatesh Vs the Management of — Labour and Industrial Disputes | Karnataka HC (2024)

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1 - NC: 2024:KHC:34190 WP No. 42836 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA WRIT PETITION NO. 42836 OF 2014 (L-TER)

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BETWEEN:

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SRI.B.P.VENKATESH S/O SRI.HARIKANTHA PILLAPPA AGED ABOUT 53 YEARS, R/AT NO.4681, NEAR MARAMMA TEMPLE, HARIKANTHA BEEDHI, BEGUR BANGALORE-560 068

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…PETITIONER

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(BY SMT. MANJULA KULKARNI, ADVOCATE FOR SRI. NAIK V S., ADVOCATE (VC))

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AND:

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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THE MANAGEMENT OF M/S BENGAL IRON CORPORATION NO.2-B, FOUNDERS AND MECHANICAL ENGINEERING NO.28, TARACHANDRA BUILDING STREET, KOLKATA-721073 REP. BY MANAGING DIRECTOR.

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M/S BENGAL IRON CORPORATION SALES DEPARTMENT, V.V.PURAM NO.156, RASHTRIYA VIDYALAYA ROAD, BANGALORE-560 002 REP. BY WORKS MANAGER.

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…RESPONDENTS

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(BY SRI. HARISH V R., ADVOCATE FOR R-1 & R-2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE RECORDS FROM THE FIRST ADDL. LABOUR

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2 - NC: 2024:KHC:34190 WP No. 42836 of 2014

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COURT, BANGALORE VIDE ANNEXURE-E AND QUASH THE AWARD PASSED BY FIRST ADDL. LABOUR COURT, BANGALORE IN I.D. NO.20 OF 2009 DATED 12.4.2014 VIDE ANNEXURE-E TO THE EXTENT THE PETITIONER IS AGGRIEVED, ETC.

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THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM : HON'BLE MRS JUSTICE K.S. HEMALEKHA

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ORAL ORDER

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Assailing the legality and correctness of the Award dated 12.04.2014 passed in I.D. No.20 of 2009 on the file of the I Additional Labour Court, Bangalore (“ Labour Court ”, for short) to the extent of non-granting of backwages from 2008 to 2014, the workman is before this Court.

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The petitioner is referred to as “ the workman ” and the respondent as “ the Management ”, for the sake of convenience.

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The workman was appointed in the respondent— Management, for termination of the workman from service without any Memo or notice, a dispute was raised under

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3 - NC: 2024:KHC:34190 WP No. 42836 of 2014

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Section 10(4-A) of the Industrial Disputes Act, 1947 (‘ the ID Act ’, for short), seeking reinstatement to the original post with back-wages, continuity of service and consequential benefits by setting aside the order of termination.

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The Management filed its counter inter alia denying the averments in the claim statement and contending that the first party workman had created such an environment in the work place, that it has become impossible for others to work peacefully and further, the Management, by offering one month’s pay in lieu of the notice period, terminated him from service.

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The Labour Court by the impugned Award allowed the claim statement in part directing the Management to reinstate the workman with continuity of service and other consequential benefits, however, back-wages was denied and the Management has not preferred any petition against the order of reinstatement and other benefits.

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NC: 2024:KHC:34190 WP No. 42836 of 2014

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Heard Smt. Manjula Kulkarni, learned counsel for Sri V.S. Naik, learned counsel for the petitioner and Sri Harish V.R., learned counsel appearing for the respondent.

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The learned counsel appearing for the petitionerworkman made the following submissions:

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(i) The termination order having held to be bad and set aside by the Labour Court, the workman is entitled for back-wages.

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(ii) The reasons assigned by the Labour Court, more particularly at paragraph 20 of the Award, are not as per the oral and documentary evidence adduced by the workman and the same warrants interference.

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(iii) No materials are forthcoming to show that the workman was gainfully employed during 2008 to 2014 and, on the other hand, the workman has categorically stated in his claim statement and in his evidence that he is not gainfully employed.

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(iv) Taking the Court to Exhibits W-5, W-7 and W-7A, learned counsel submits that though the Management had called upon the workman to report for work, the management has not provided employment for one or the other reasons and the issuance of the letters calling upon the workman to report to duty was merely for asking so, and the Management was not interested in providing employment to the workman and the management now cannot contend that they had called upon the workman to report for work and the workman was not ready and willing to report for duty.

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(v) The Labour Court ought to have awarded backwages from 2008 to 2014 in light of the materials produced by the workman.

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Per contra , learned counsel appearing for the respondent—Management justifies the award passed by the Labour Court in denying the back-wages and would urge the following grounds:

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(i) Taking the Court to Exhibits W-1, W-3 and W-4 learned counsel would contend that the Management had made every effort in calling upon and requesting the workman to join the employment and that the Management has agreed to take him back in the employment with continuity of service.

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(ii) Inspite of several communications, the workman has shown no willingness to join the employment of the Management.

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(iii) The Labour Court considering the said aspect has rightly denied back-wages, which does not warrant any interference.

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Having heard the learned counsel for the parties and perused the materials on record, the only point that arises for consideration of this Court is:

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“Whether the impugned Award passed by the Labour Court warrants any

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interference in the facts and circumstances of the present case?”

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The claim of the workman is that the Management

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had refused employment to him from 21.10.2008 without citing any reasons, by paying one month’s pay in lieu of the notice and directed the workman to collect the terminal benefits.

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Though the termination of the workman was held to be bad and set aside by the Labour Court directing reinstatement of the workman, the Management has not approached the Court against the said order, the present petition is by the workman only in respect of denial of back-wages to him and to the said extent, the materials on record need to be looked into.

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Exhibit W-1 is a notice issued on 03.11.2008 by the workman through his advocate to the Management stating that the workman be reinstated with continuity of service, the Management replied vide Exhibit W-3 dated 03.12.2008 indicating that the Management has

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considered the letter of the workman and has requested the Management at Bengaluru for absorbing the petitioner

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in the employment and has agreed to take back the workman in employment with continuity of service.

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Further, a letter was again addressed by the workman on 07.02.2009 as per Exhibit W-4, admitting that he has received a letter from the Management about the intention of the management to reinstate him. Further, at paragraph 3(d) of the said notice, it is stated that when the workman had attempted and tried to report to duty at Bengaluru office, he was refused employment and treated very badly before the customers and public, further it is stated in the letter that under the pretext of colourable exercise of power and only with mala fide intention to harass, pseudo assurances were floated against the workman to report to duty, which has to be construed as unfair labour practice.

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The Management again issued reminder as per Exhibit W-6 calling upon the workman to join duty and

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that the workman had not joined duty. Pursuant to which, a notice was ordered stating that inspite of several warnings, the workman has not reported to duty.

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Exhibit W-11 is the notice issued on 26.02.2009 stating the details of correspondences/reminders issued to the workman to report for work and inspite of several requests, the workman having not reported, once again he was called upon to join immediately.

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It is the contention of the Management that the workman has refused employment of the Management, when asked to join for duty from 2008 to 2014 and hence, he is not entitled for any back-wages though his termination is held to be bad in law by the Labour Court.

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The Labour Court, while denying the back-wages to the workman, at paragraph 20 of its Award has stated that there is a lapse on the part of the workman in not reporting for work though called upon by the Management

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and in those circumstances, the Labour Court found it appropriate not to award any back-wages to the workman.

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18. The contention of the workman that the termination

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having held to be not proper, the workman is entitled for back-wages for the said period from 2008 to 2014 does not appraise the mind of this Court, for the reason that the workman was called upon to report to duty by the Management and the workman has not showed his bona fides by reporting to duty and further there is no independent evidence let in by the workman to indicate that the Management has refused employment from 2008 to 2014, making the Management liable to pay backwages for the said period.

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19. Neither reinstatement nor payment of back wages as

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such is a common law right, these reliefs can, however, be granted by industrial tribunals in the course of industrial adjudication. Generally, the question of back wages would not arise, when the discharge or dismissal is not set aside and is upheld by the industrial adjudication as proper and

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NC: 2024:KHC:34190 WP No. 42836 of 2014

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justified but the question is accentuated when the adjudicator set asides the discharge or dismissal and awards reinstatement. Normally, back wages must follow reinstatement, however, the payment of back wages would arise if the workman is always ready to work and they were kept away on account of an invalid act of the employee and there would be no justification for not awarding them back wages. . In the instant case, the relief of back wages was denied as the petitioner failed to report to duty in spite of several reminders calling upon the petitioner to join the employment and in that circumstances, the Labour Court held that the workman is not entitled for back wages from 2008 to 2014.

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For the foregoing reasons, the point framed for consideration is answered accordingly and this Court passes the following order.

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ORDER

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(I) The writ petition is dismissed .

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NC: 2024:KHC:34190 WP No. 42836 of 2014

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(II) The impugned Award passed by the Labour Court stands confirmed.

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Sd/(K.S. HEMALEKHA) JUDGE

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RK CT: SN List No.: 1 Sl No.: 17

Sri.B.P.Venkatesh v. the Management of

Case brief

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Sri.B.P.Venkatesh v. the Management of

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