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Judgment
Anand Byrareddy, J.—These petitions are heard and disposed of by this common order having regard to similar facts and circumstances arising in both the cases.
The petitioner is a statutory body namely, Karnataka Urban Water Supply and Drainage Board. The petitioner is constituted under the Karnataka Urban Water Supply and Drainage Board Act, 1969 (Hereinafter referred to as the ''Act'', for brevity). The functions of the Board were earlier performed by the Public Health Engineering Department. In the year 1964, for the purpose of regulating drainage facility etc., the Board was established. It has its own Service, Cadre and Recruitment Regulations and according to the Regulations, no recruitment can be made to any permanent or temporary posts unless it is in accordance with the Regulations. Since it was not an independent organization, it was awarding contracts to contractors to execute the projects by calling for tenders.
The respondents in these petitions were such workmen allegedly working under contractors and they had put forth their claim that they are workmen under the petitioners performing various activities such as fitters, valvemen, electricians, line repair men, typists and drivers at Dambal Pump House and Mundaragi Pump House in the respective petitions. It was their claim that the wages were paid to them on hand vouchers to avoid permanent status being given to their employment. It was their claim that their services were to be regularized and they were pressing the Board to award them service benefits and hence they had moved the Labour Court, Hubli, for a declaration that termination of their services was illegal and void and they should be reinstated with all consequential benefits.
The respondents had tendered evidence and produced documents in support of their claim.
However, it was pointed out by the petitioners that the respondents had not produced the appointment letters and muster rolls showing their attendance and even then the Labour Court having proceeded to allow the petitions on the basis of the oral evidence tendered and nothing more, the petitioners are before this court.
The learned counsel would reiterate the grounds that are urged before the Labour Court that there was no possibility of the petitioner, which is a statutory body in having employed any person outside the scope of the regulations. In the absence of any material evidence, the claim of the respondents having been accepted by the Labour Court has resulted in a miscarriage of justice. And added to this false claim, the petitioners have been burdened with payment of wages as provided under section 17(b) of the Industrial Disputes Act, 1947, for a sustained period of time during the pendency of this petition. If the respondents are to be reinstated with back wages, the petitioner - Corporation may face serious financial crisis even leading to its liquidation and therefore, the learned counsel would submit that having regard to the law of the land, the petitions be allowed and the award of the Labour Court be set aside on such terms, as this court may direct.
While the petitions are resisted by the learned counsel for the respondents and it is pointed out that it remains a fact that the management had tried to prove that the respondent -employees were engaged by the contractors. However, no such fact was established. The petitioners were not even in a position to name any contractor under whom the respondents were said to have been engaged. The respondents would further point out that there were other persons similarly placed as the respondents and the petitioners are adopting double standards in having regularized their services, but seeking to give step motherly treatment to the present respondents, while denying their very status.
In the face of the State of Karnataka having evolved a Scheme in the year 2013, which even provides certain benefits to daily rated employees, the respondents are certainly entitled to the relief and if they are directed to be reinstated, they will have a new lease of life.
Therefore, the learned counsel would seek to justify the award of the Labour Court.
The learned Counsel for the respondents has placed reliance on the following authorities:--
"a) WP 41440/2001 dated 9.3.2006
b) B.S.N.L. Vs. Bhurumal,
c) The Executive Engineer and Another Vs. Sri Zulfegar Ali,
d) Devinder Singh Vs. Municipal Council, Sanaur, ."
The dispute in the present case on hand was with regard to illegal termination and not seeking regularization of service and that it is well settled as to remedy in respect of illegal termination is not merely payment of compensation, but reinstatement with full back wages.
Given the above rival contentions, it is seen that the respondents had indeed not placed any material before the Labour Court in seeking to establish that they were employed by the petitioners. The Labour Court has sympathized with the low life of the respondents and has opined that they were poor workmen, who were helpless and could not be expected to produce records to establish the circumstances and has merely, on the basis of the oral evidence, accepted the case of the respondents.
The question whether they are entitled to reinstatement with full back wages on account of illegal termination is no longer res integra. The decisions cited by the learned counsel for the respondents would also indicate this position.
Insofar as the decision in WP 41440/2001 decided on 9.3.2006, relied upon by the counsel for the respondents is concerned, is a case where it was directed that the workman be reinstated with fill back wages and it was indeed in the background that the workman had been illegally retrenched. The Labour Court, on consideration of his claim, had rejected the claim on the ground of delay. While it was not a case where it was rejected for want of any material. Though the record was placed before the Labour Court to establish that he had indeed worked for more than 240 days, merely on account of delay, the matter having been rejected, while placing reliance on a judgment of the Supreme Court in the case of U.P. State Electricity Board v. Rajesh Kumar, 2005 SCC (L & S) 183, it was held that the Labour Court was not justified in rejecting the claim on the ground of delay. This will not aid the respondents since the facts of that case were different.
In so far as the decision in the case of B.S.N.L. Vs. Bhurumal, , the Supreme Court on a review of the entire case law, has reiterated the observations in Incharge Officer and Another Vs. Shankar Shetty, , and has extracted the following discussion:--
"Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short "the ID Act")? The course of the decisions of this Court in recent years has been uniform on the above question.
Bharat Sanchar Nigam Ltd. Vs. Man Singh, . Incharge Officer and Another Vs. Shankar Shetty, . In Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Another, , Agriculture delivering the judgment of this Court, one of us (R.M. Lodha,.) noticed some of the recent decisions of this Court, namely, U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey, , Uttaranchal Forest Development Corporation Vs. M.C. Joshi, , State of M.P. and Others Vs. Lalit Kumar Verma, , Madhya Pradesh Administration Vs. Tribhuban, , Sita Ram and Others Vs. Moti Lal Nehru Farmers Training Institute, , Ghaziabad Development Authority and Another Vs. Ashok Kumar and Another, and Mahboob Deepak Vs. Nagar Panchayat Gajraula and Another, , Gajraula and stated as follows: (Jagbir Singh case, SCC pp.330 and 335 paras 7 and 14). "It is true that the earlier view of this Court articulated in many decision reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice.
It would be, thus seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee."
While therefore noting the development of the law and the state of the law, the apex court has thereafter proceeded to address the facts of that case and therefore, the respondents seeking to place reliance on the said decision would not aid the respondents.
Insofar as the decision in The Executive Engineer and Another Vs. Sri Zulfegar Ali, is concerned, a learned single judge of this court has relied on Devinder Singh, supra and has opined that the fact situation in Devinder''s case was similar to the case that was decided by the learned Single Judge. It was found in Devinder''s case that the Government had banned recruitments and permitted appointment and temporary and ad hoc basis and the respondent -municipality because of the ban appointed the appellant - workman in that case on daily wage basis. It was also found that the services of the appellant was very much needed and could not be distinguished, because there was no regular recruited employees appointed to discharge the duties. The learned Single Judge has proceeded to express an opinion that in the State of Karnataka, the situation was almost similar. There was a ban on the department to recruit employees to vacant posts in the Government departments and the local bodies were permitted to appoint employees on contract or on ad hoc basis. In some cases, the Government indulged in outsourcing the services to the private individuals in order to avoid the risk of regularisation or to over come rigour of compliance of the labour welfare rules. The learned Judge therefore has proceeded to grant relief. This, it can be seen, was a personal opinion of the Judge, without there being any contention taken by the parties in that case. Therefore, the same cannot be applied as a precedent in the present case on hand.
In the case of Devinder Singh Vs. Municipal Council, Sanaur, , which is also relied upon by the learned Counsel for the respondents, it is again noticed that at paragraph 25, the Supreme Court has not stated that if there was compliance with the mandate of section 25-F(a) and (d) of the Industrial Disputes Act, there would be any illegality in the workmen being retrenched.
Therefore, these decisions would not support the case of the respondents. The respondents, at best, would be entitled to compensation as it is the settled legal position.
Therefore, apart from wages as enumerated under section 17-B of the ID Act, that they have already received, if the respondents are held entitled to appropriate compensation, it would have to be computed in terms of 25-F(a) and (b) of the ID Act. Therefore, in WP 62789-791/2009, respondents 1 to 6 would receive 2 1/2 months'' salary at the rate of Rs. 1872/- per month; respondent No. 7 would get 2 months'' salary, respondent No. 8 would get one month''s salary, respondents 9 to 11 would get half month''s salary.
In WP 61311/2009, respondents 1 to 5 are entitled to 3 months'' salary, at the rate of 1460/- per month, respondents 6 to 9 are entitled to 2 1/2 months'' salary and respondents 10 to 13 are entitled to 2 months'' salary.
Accordingly, the petitions are allowed in part. The award of the Labour Court is set aside. The respondents are held entitled to compensation as directed above, which shall be paid within four weeks, failing which, it would carry interest at 12% per annum from the date of default till the date of payment.