Dismissed

The Management of v. the Secretary

Karnataka HC3 Sept 2024WP/43422/2018

Case brief

AI extract

What is this about?

Management of an unaided private technical institution challenged an Industrial Tribunal award directing it to extend promotion, time-bound advancement, leave encashment and family-planning increment benefits on par with government employees to 32 non-teaching workmen. Relying on the institution's own service rules and a prior joint memo admitting pay parity, the High Court dismissed the petition.

What did the court decide?

None granted to petitioner; Tribunal award dated 15.03.2018 in I.D. No.180/2013 confirmed.

The Management of Vs the Secretary — Labour and Industrial Disputes | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF SEPTEMBER, 2024 BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

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WRIT PETITION NO.43422 OF 2018 (L-RES)

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BETWEEN:

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THE MANAGEMENT OF SIDDHARTHA EDUCATION SOCIETY SSIT, MARALUR, KUNIGAL ROAD TUMAKURU BY ITS SECRETARY – 572 101. ... PETITIONER

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(BY SMT. JAHNAVI M., ADVOCATE FOR SRI CHANDRAKANTH R. GOULAY, ADVOCATE)

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AND:

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THE SECRETARY, TUMKUR DISTRICT TECHNICAL INSTITUTE NON-TEACHING EMPLOYEES’ UNION C/O. CITU, 3^RD CROSS, NAZARABAD, TUMAKURU – 572 101. ... RESPONDENT

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

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(BY SRI L. MURALIDHAR PESHWA, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR ENTIRE RECORDS FROM THE INDUSTRIAL TRIBUNAL, BENGALURU, PERTAINING TO ANNEXURE-E, AND GRANT THE PETITIONER THE FOLLOWING RELIEFS; ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, OR DIRECTION QUASHING THE AWARD DATED 15/03/2018 PASSED BY THE INDUSTRIAL TRIBUNAL, BENGALURU, IN I.D.NO.180/2013, THE CERTIFIED COPY OF WHICH IS PRODUCED AND MARKED AS ANNEXURE-E, SINCE THE LABOUR COURT HAS COMMITTED ERRORS WHICH ARE APPARENT ON THE FACE OF THE RECORDS.

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

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NC: 2024:KHC:36069 WP No. 43422 of 2018

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

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ORAL ORDER

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Petitioner-Management is seeking for the following reliefs:

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“a. ISSUE WRIT OF CERTIORATI or any other appropriate writ, or direction quashing the Award dated 15.03.2018 passed by the Industrial Tribunal, Bengaluru, in I.D. No.180 of 2013, the certified copy of which is produced and marked as ANNEXURE-E, since the Labour Court has committed errors which are apparent on the face of the records.

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b. GRANT SUCH OTHER RELIEF or reliefs as deemed necessary to meet the ends of justice.”

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The appropriate government made reference for

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adjudication under Section 10(1)(d) of the Industrial Disputes Act, 1947 (the ‘ID Act’ for short) which reads as under:

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“1. Whether the first party union i.e. Secretary, Tumkur District Technical Institute Non-Teaching Employees Union C/o CITU Office, 3^rd cross, Nazarabad, Tumkur is justified in raising the dispute on behalf of 32 workmen mentioned in Annexure-1 mentioned below demanding 1) benefit of promotion

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on the basis of seniority, 2) Time bond advancement, 3) Leave encashment and 4) additional increment in respect of family planning benefit from the second party M/s. Siddhartha Education Society, S.S.I.T, Maraluru, Kunigal Road, Tumkur?

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2. If not, to what reliefs said workmen are entitled?

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Sl. No.	Name of the employees	Occupation	Division	Service rendered Years
1.	Balakrishna T.R.	Instructor	Civil	28+
2.	Govindaiah H.K.	Instructor	Computer	23+
3.	_Jayaramegowda K.N. _	Instructor	Mechanical	23+
4.	Kantharaju N.P.	Instructor	Electrical	28
5.	Nataraju G.V.	Instructor	I.E.M.	28+
6.	Nagarajaiah .N	Instructor	Mechanical	23+
7.	Rangappa .S	Draft man	Electrical	21+
8.	Shivalingaiah T.G.	Instructor	Civil	26
9.	Veeranna .B	Instructor	Mechanical	26
10.	Phaniraja B.N.	Asst. Instructor	Mechanical	5+
11.	Rajashankar	Asst. Instructor	Computer	7+
12.	Basavaraju K.P.	S.D.A.	Office	30+
13.	Bhavanishankar .C	Mechanic	Electrical	29+
14.	Jayakumar	Mechanic	Mechanical	24+
15.	Kiran	Mechanic	Electrical	7
16.	Rangaswamy .K	Mechanic	Mechanical	28+

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17.	Balaji H.M.	Attender	Computer	23+
18.	Chandrashekaraiah	Attender	Electronics	27+
19.	Chikkahanumaiah	Peon	Electrical	29+
20.	Devid	Helper	Mechanical	30+
21.	Gangappa M.B.	Peon	Civil	30+
22.	Hanumanthaiah	Attender	Office	28+
23.	Jayaramaiah .S	Peon	I.E.M.	28+
24.	Nagaraju M.N.	Peon	Mechanical	32+
25.	Nagendra T.V.	Attender	Electrical	30+
26.	Nagaraju .G	Peon	Sports	29+
27.	Nagarajaiah .L	Helper	Physics	27+
28.	Phaneendra H.L.	Helper	Maintenance	24+
29.	Shivakumar	Helper	Electrical	28+
30.	Shanthaiah	Helper	Electronics	28+
31.	Thimmegowda	Peon	Sports	29+
32.	Vijayakumar .S	Peon	Civil	28+

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Claim statement was filed by the respondent contending that the management has not extended the benefit of promotion, time bound advancement, leave encashment and additional increment in respect of family planning benefit to the workman and further stated that all the government orders in respect of the above benefits are

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also applicable to the management and the management are duty bound to obey and implement the said orders.

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The management countered the claim

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statement, inter alia, as under:

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i. Fixation of seniority and time bound promotion – the post of peon, helper, attender and sweeper come under one cadre and their avenue for promotion would be only on possessing SSLC qualification and as on the date, no one was eligible.

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ii. For the cadre of Instructor is concerned, the post requires pass in Diploma in the concerned branch. For the post of Assistant Instructor Diploma in the concerned branch is a required qualification, that the Assistant Instructors with five years experience can seek promotion, the post is also filled up by way of direct recruitment and no one has objected to the procedure being followed by the management for all these years.

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iii. For Time Bound benefits, the government orders and circulars are not applicable to the management.

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iv. Leave encashment benefit – employees are entitled to utilize the earned leave for the valid reasons and that the management has never rejected leave to any of the employees and leave encashment benefit cannot be extended to the employees.

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v. Family Planning benefits – the employees approached the management by making oral submission, but relevant documents, medical certificates, certificate from the revenue authorities regarding the status of the family have not been furnished.

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vi. The claim statement filed by the petitioner is totally unjustified and the management is an unaided private educational institution.

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The Tribunal by the impugned award held that

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the management shall pay and extend all the benefits on par with the government employees and therefore, the demand raised by the union was found to be justifiable one and the claim statement was allowed, directing the

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management to pay the benefits to the workmen with 9% interest.

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Learned counsel appearing for the petitioner would mainly contend that the application of Rule 5 of the Karnataka Educational Institution (Terms and Conditions of Service etc.,) Rules 1997, is not applicable to the petitioner, as it is available / amenable for only aided institutions and not for an unaided private educational institution and the question of granting benefits on par with the Government employees would not arise in the present facts. Petitioner-management submits that the time bound promotion is entitled to the workmen, however, they have not made any such demand and they are working without making any demand and the claim made is highly belated, further, the Government order, regulations and notifications are not applicable to the petitioner, as the institution is an ‘unaided institution’.

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Regarding encashment of leave, it is the

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contention that the employees are at liberty to utilize the earned leave and the petitioner-institution has never rejected any of the employees to avail the earned leave. It is contended that the benefits available in Government institutions cannot be extended to the employees due to the financial constraints over which the government has control and the employees cannot insist upon such benefits.

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For the family planning benefits, no one has placed relevant material, such as a local certificate from the revenue authorities, regarding the status of the family, etc., and therefore it is not granted, but such family planning benefits would be granted only to eligible employees who are entitled, only upon production of documentary evidence at an appropriate time to claim the said benefit. That the employees of the union can always approach the institution for extension of benefits without taking the aid of the union and they can seek relief like

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others, and that in the order of the Tribunal, imposing such a measure on the private institution is impermissible and that the impugned award passed by the Tribunal needs to be set aside.

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In support of his contention, learned counsel

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has placed reliance on the following decisions:

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i. Sri Siddartha Educational Society Vs. Tumkur District Technical Institutions Non-Teaching Employees Union (Regd.) and another¹ (Siddartha Educational Society)

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ii. Sushmita Basu and others Vs. Ballygunge Siksha Samity and others² (Sushmita Basu)

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iii. The State of Maharashtra Vs. Bhagwan³ (Bhagwan)

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Per contra, learned counsel appearing for the

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respondent justifies the order passed by the Tribunal and would contend that the workmen are entitled for the time

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1 W.P. No.12937/1998 D.D. 27.11.2002

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2 AIR ONLINE 2006 SC 518

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3 Civil Appeal Nos.7682-7684/2021

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bound promotion, time bound advancement, leave encashment and grant of additional increment to the eligible employees under the Family Pension Rules from the management and the Tribunal has rightly considered and passed the impugned order, directing the management to pay the benefits.

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The respondent has placed the “rules regulating conditions of the employees” of the petitioner- institution as approved by the governing body in the meeting held on 28.08.2010 to contend that in Chapter-I it is indicated that the scale of pay and allowances shall be prescribed by AICTE/State Government from time to time as modified and adopted by the Governing body, and further, submits that Chapter-IV clearly indicates that the scale of pay, etc., for the non-teaching staff shall be as prescribed by the State Government from time to time and drawing attention to Chapter-V of the Rules clearly indicates the staff pattern and mode of recruitment and scale of pay is as per the State Government.

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Learned counsel submits that the Rules deals

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with the pay scale and other service transactions to the teaching and non-teaching staff in the technical institutions and the regulations, more particularly at Chapter-V, which indicates that the Rules are applicable to the teaching and non-teaching staff of technical institutions and the scale of pay and other service condition are as per the State Government and that the Government Order which has been issued and produced by the Union before the Tribunal regarding time bound advancement of the employees of the petitioner-institution has been rightly taken into consideration and the Tribunal has passed the impugned order directing the management to pay the benefits to the eligible employees.

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That in the settlement arrived in W.A. No.1497/2003 as per Ex.W.12, the management has accepted that the members of the union of the management are entitled for the benefits on par with the pay scale payable to the government employees with

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effect from 01.06.1997 and now the petitioner cannot approbate and reprobate and cannot contend that the pay scale and other service conditions cannot be made entitled to the employees on par with the government employees. In support of his contentions, learned counsel has placed the following decisions:

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i. Bharat Bank Limited Vs. Employees of Bharat

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Bank Limited⁴ (Bharat Bank Limited)

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ii. Harjinder Singh Vs. Punjab State Warehousing Corporation⁵ (Harjinder Singh)

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iii. Secretary, Mahatma Gandhi Mission and another Vs. Bhartiya Kamgar Sena and others⁶

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(Mahatma Gandhi Mission)

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iv. K. Krishnamacharyulu and others Vs. Sri Venkateswara Hindu College of Engineering and another⁷ (K. Krishnamacharyulu)

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v. Siddartha Education Society Vs. Thimme Gowda

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and others⁸ (Siddartha Education Society)

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4 1950 SCC 470

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5 (2010) 3 SCC 192

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6 (2017) 4 SCC 449

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7 (1997) 3 SCC 571

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vi. The Management of A.M. Shaikh Homeopathic

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Vs. The Workmen of A.M. Shaikh Homeopathic Medical College and Hospital and another⁹ (The Management of A.M. Shaikh Homeopathic)

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Having heard the learned counsel for the

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parties, the point that arise for consideration is:

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“ Whether the award passed by the Tribunal is justified and warrants any interference in the present facts and circumstances of the case?”

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The petitioner-management is an unaided private institution, having Service Rules regulating conditions and service of the petitioner which was approved by the governing body in the meeting held on 28.08.2010, wherein, Chapter-I Rule 4 reads as under:

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“4. Scales of pay and allowances shall be as prescribed by AICTE/STATE Government from time to time as modified and adopted by the governing Body.”

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8 W.P. No.10791/2012 D.D. 24.02.2023

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9 W.P. No.65310/2010 D.D. 09.02.2024

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Chapter-IV Rule c reads as under:

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“c. For Non-Teaching posts the selection committee shall as constituted by the management. Qualification experience. Scale of pay etc shall be as prescribed by state government from time to time.”

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(emphasis supplied)

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Chapter-V in regard to non-teaching posts reads as under:

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“ NON-TEACHING POSTS (Offices, Ministerial and Library)

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Sl. No.	Name of the post	Scale of Pay	Qualifications	Mode of recruitment
8.	Director of Physical education	As per State Govt.	M.P.Ed.,	Direct Recruitment
9.	Medical Officer (Part time) 1 Male, 1 Female	Negotiable	M.B.B.S.	By Negotiation
10.	Security	-	-	By Authorized Agencies

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16. The Apex Court in the case of Bharat Bank

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Limited stated supra has observed that the Tribunal shall

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have the same powers as vested in the Civil Court under

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the Code of Civil Procedure when trying a suit, in respect of the following matters:

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a. Enforcing the attendance of any person and examining him on oath;

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b. Compelling the production of documents and material objects;

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c. Issuing commissions for the examination of witnesses;

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d. In respect of such other matters as may be prescribed; and every inquiry or investigation by a Tribunal shall be deemed to be a judicial proceedings within the meaning of Sections 193 and 228 of the Penal Code, 1860.

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The Apex held that the power exercisable by

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the Tribunal of this nature was considered by the Federal

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Court in the case of Western India Automobile Association Vs. The Industrial Tribunal, Bombay &

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others¹⁰ and it was observed that the Tribunal can do what no Civil Court can do, namely, add to or alter the terms or conditions of the contract of service. The

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10 AIR (36) 1949 Federal Court 111

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Tribunal having been entrusted with the duty of adjudicating a dispute of a peculiar character, it is for this reason that is armed with extraordinary powers. These powers, however, are derived from the statute. These are the rules of the game, which has to be decided according to these rules. Further held that powers conferred have the sanction of law behind it and are not exercisable by any reason of discretion vested in the members of the Tribunal.

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The Tribunal gives a finding that the workman of the union are entitled for the benefits, while examining the order / award of the industrial tribunal, this Court has to keep in mind that the ID Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted in view of the goals set out in the Preamble of the Constitution and the provisions contained in Part-IV thereof in general and Articles 38, 39(a) to 39(e), 43 and 43-A in particular, which mandate that the State should secure a social order

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for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material sources of the community to sub-serve the common good and also ensure that the workers get their dues.

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The Apex Court in the case of Mahatma Gandhi Mission stated supra observed that the regulations deal with the pay scales and other service conditions of the teachers and other academic staff in technical institutions. The Regulations were considered by the Apex Court in the case of Mahatma Gandhi Mission and observed that the institution has no excuse for making such a submission as in the earlier round of litigation, the respondents - non-teaching employees of the appellants, though succeeded both before the High Court and this Court in obtaining appropriate directions to the appellant and other authorities to revise the pay scales of the employees in tune with the Fifth Pay commission, entered into a settlement dated 30.01.2008, the terms of which

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have already been taken note of and further observed that, the non extension of the same benefits to the employees to the unaided educational institutions which otherwise function under the control and supervision of the State Government would be a dereliction of the constitutional mandate under Article 38 and that it makes an artificial classification between the teaching and nonteaching staff of the educational institutions and further between the employees of aided and unaided educational institutions without there being any nexus between such classification and purpose sought to be achieved by pay revision.

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It is relevant to state here that, in W.A. No.1497/2003 - Ex.W.12 against the order passed in W.P.No.12937/1995 the management of Siddhartha Education Society-petitioner herein had filed a joint memo holding that the members of the Union are entitled for the benefits on par with the pay scale payable to the Government employees with effect from 01.06.1997.

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The management, through the joint memo, admitted that the non-teaching staff employees employed by the management would be entitled to the pay scale of an employee of corresponding posts in the government educational institutions, there is no reason or no material placed as to how the employees ought to have been denied the benefit of the time bound advancement, promotion or entitlement for encashment of earned leave, and even more so, when the Rules of the petitionerinstitution clearly indicate that the scale of pay, etc., shall be prescribed by the State Government from time to time.

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Though the contention is taken by the petitioner’s counsel that the service rules of the employees of the petitioner-institution have not been given effect to, perusal of the service rules of the employees would clearly indicate that the Governing Body resolved to accept the service rules on 28.08.2010. Even otherwise, the contention of the petitioner, as indicated above, is that the workman has not approached the management directly

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seeking such benefits and the benefits claimed are belated, the petitioner has made out no grounds to interfere with the impugned award passed by the Tribunal.

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The reliance placed on the decisions by the learned counsel for the petitioner is distinguishable and not applicable to the present facts of the case.

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It is relevant to state here that in an identical matter, in W.P.No.10791/2012 in the case of Siddharth Education Society vs. Thimmegowda and others, the petitioner-institution has suffered an order by this Court and in the said petition, the benefits were given to the similarly placed employees and this Court finds no reason as to why the employees have to be denied the time bound pay/promotion, leave encashment, grant of additional increment in respect of family planning scheme, having met with the required criteria which cannot be denied by the petitioner - institution, moreover when the Government order is made applicable on pay scale to the institution, there is no ground made out by the petitioner

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