The Managing Director, The Karnataka Neeravari Nigam Limited vs Shri. A.G. Prabhakar

Ram Mohah Reddy

The Karnataka Neeravari Nigam Limited, aggrieved by the award dated 1101.3011. in IDA No.19/2003 of the Labour Court, D.K. Mengalore, Annexure - A, allowing respondent''s petition u/s -10(4)(A) of the Industrial. Disputes Act (for short ''Act''), directing reinstatement as daily wager with continuity of service and payment of 50% of back wages from the date of refusal of employment has presented this appeal.

Indisputably the respondent when engaged as a casual labourer on daily wages in the irrigation project, on its completion was refused employment, without payment of retrenchment compensation u/s - 25F of the Act, since the respondent had worked continuously for 240 days, in the year preceding the termination,

The respondent - workman questioned the refusal of employment in a petition u/s 10(4-A) of the Act, arraigning the petitions as the ascend party, who on notice, entered appearance, opposed the claim by filing 7 counter statement, interalia, denying the relationship of employer and employee and that certain agenciea had undertaken supply of labors to whom payment was made and on the completion of the construction of the dam and canal work within the limits of Shimoga division, contracts were concluded and the establishment wound up.

In the premises of pleadings of the parties, the labour Court framed issues. Parties let-in evidence, when petitioner examined on witness as RW-1, and did not produce documents, while the respondent was examined as AW-1 and eight documents were marked as Exhibit A1 to A8.

The Labour Court obserwd that Exhibit - A1 was the memo issued by the Executive Engineer Upper Tunga Project, Shimoga to the Regional Transport Officer, Shimoga regarding arrangement for vehioles to be made available to the Lok Sabha Election and providing the services of drivers; Exhibit - A2 was the memo issued by the District Surgeon, Government Megan Hospital, Shimoga intimating the relieving of driver of the vehicla bearing No.MYL 9660 after utilizing their services for Puke Polio Program; Exhibit - A3 a letter issued by the petitioner and addressed to the District Surgeon, Shimoga informing about the service of the respondent as a driver to attend the Pulse Polio Program on 17.01.1998; Exhibit - A4 extract of the Log book pertaining to certain vehicles plying in Zilla Panchayat Elections of 2000 at Sagar Taluk, containing the signatures of the respondent; Exhibit - A5, the Xerox copy of an extract issued by the District Hospital, Shimoga disclosing that the respondent''s service was utilised on 07.12.1997 to attend the Pulse Polio Program and; Exhibits - A6 to A9 the extract of wag 58 paid pertaining to different workers including the petitioner issued by the Assistant Executive Engineer, Upper Tunga Project, Gajanur, Shimoga District In the premise of the documentary evidence, the Labour Court held that there exited the relationship of employer and employee between the parties and answered the issues accordingly.

So also the Labour Court returned a finding in the affirmative that the respondent was engaged as a daily wager in the petitioner''s establishment and was refused employment with effect from 30.04.2003. The Labour Court having observed that since the petitioner is a department of the Government, any appointments against vacant posts, must be strictly in accordance with the Recruitment Rules by inviting applications, while the respondent was not appointed In a regular recruitment process, and noticed the Constitution Benoh decision of the Apex Court in Secretary, State of Karnataka vs. Umadevi reported in (2004) 4 SCC 44 nevertheless held that as there was a violation of Section - 25F of the Industrial Dispute Act granted the reliefs by the award impugned.

Heard the learned counsel for the parties, perused the pleadings and examined the award.

Having regard to a catena of decisions of the Labour Court and that of the Supreme Court that the daily wage employers are not entitled to restatement, continuity of services, consequential benefits or back wages, accept, for cooperation in the event of violation of Section - 25F of the Act, the award impugned insofar as it relates to reinstatement and peyment of 50% back wages with consequential benefits is illegal Reference may be made to the following decisions of the Apex Court:

(i) State of Rajasthan and Others Vs. Daya Lal and Others, ,

(ii) Union of India (UOI) and Others Vs. Vartak Labour Union, ,

(iii) Union of India and Others vs. Arul Mozhi Iniarasu and Others - AIR 2011 SC 2731,

(iv) Senior Superintendent Telegraph (Traffic) Bhopal Vs. Santosh Kumar Seal and Others, ,

(v) Incharge Officer and Another Vs. Shankar Shetty, .

The Apex Court in Jagbir Singh Vs. Haryana State Agriculture Marketing Board and Another, , observed thus -

an order of retrenchment in violation of Section -25F although may be set-aside but an award of reinstatement should not, however, be 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 wager has not been found to be proper by this Court and in stead compensation has been awarded. This Count has distinguiehed between a daily wager who does not hold a poat and a permanent employes. Therefore, the view of the High Court that the Labour Court erred in granting restatement and back wages in the facts and ciroumstences of the present case cannot be said to suffer from any legal flaw. However, in our view, the High Court erred in not awarding comperstion to the appellant while uosetting the award of reinstatement and back wages. As a matter of fact, in all the judgements of this Court referred to and relied upon by the High Court while upsetting the award of reinstatement and back wages, this Court has awarded compensation.

Although the learned counsel for the respondent places reliance upon the decision in Devinder Singh Vs. Municipal Council, Sanaur, to sustain the award as well merited and not calling for interference, I mm afraid that decision does not advance the case of the respondent, I say so because at para - 27 of the said judgment, the Apex Court having considered the facta and circumstances of that case more appropriately that of a workman, who was already in employment under the employer was taken on contract basis to discharge duties of a clerk since there was & ban in the filling up of vacancies of the clerk in the office of the Municipal Council, the Apex Court directed reinstatement and payment of arrears. In my considered opinion, the facts of tins case being entirety different from the facts in Devindar Singh vs. Municipal Council, Sanaur, that judgment is inapplicable.

In the result, this petition is allowed in part, the award impugned insofar as direction to reinstate the respondent with continuity of service and payment of 50% backwages is quashed. The award stands modified entitling the respondent to compensation of Rs. 1,00,000/- (Rupees One Lakh Only).

Two months time for compliance.