Karnataka High Court
Mahantesh Basavanneppa Tigadi vs The Asst. Executive on 28 May, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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WP No. 62471 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO.62471/2010(L-TER)
BETWEEN:
MAHANTESH BASAVANNEPPA TIGADI,
AGE: 45 YEARS, OCC:NIL,
R/O: SANKOLLI, TQ: BAILHONGL,
DIST: BELAGAVI.
...PETITIONER
(BY SRI ANANT P. SAVADI, ADVOCATE)
AND:
1. THE ASSISTANT EXECUTIVE,
ENGINEER, M.L.B.C.C.,
SUB-DIVISON-4, SAUNDATTI.
2. ASSISTANT EXECUTIVE ENGINEER,
M.L.B.C.C. SUB-DIVISION-5,
BAILHONGAL.
Digitally signed 3. THE KARNATAKA NEERAVARI,
by
YASHAVANT NIYAMIT, COFFEE BOARD,
NARAYANKAR
Location: High BANGALORE - 1.
Court of
Karnataka ...RESPONDENTS
(BY SRI S.M.TONNE, ADVOCATE FOR R1 AND R2;
R3 IS HELD SUFFICIENT)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
CONSTITUTION OF INDIA, PRAYING TO A WRIT OR ORDER OF OR
DIRECTION IN THE NATURE OF CERTIORARI OR ANY OTHER
APPROPRIATE ORDER QUASHING THE AWARD PASSED BY THE
INDUSTRIAL TRIBUNAL, HUBBALLI, IN I.D.NO.206/2003, DATED
24/02/2009, PRODUCED AT ANNEXURE-E AND DIRECT THE
RESPONDENT TO REINSTATE THE PETITIONER BACK INTO SERVICE
WITH CONSEQUENTIAL BENEFITS AND ETC.,
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NC: 2024:KHC-D:7055
WP No. 62471 of 2010
THIS PETITION, COMING ON FOR PRELIMINARY HEARING - B
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. This petition is filed by the petitioner being aggrieved by
the order dated 24.02.2009 passed by Industrial Tribunal, Hubballi in
I.D.No.206/2003 by which the reference made for adjudication
concerning the dispute between the petitioner and the respondents
authorities has been rejected.
2. Brief facts of the case are that the petitioner was
appointed in the year 1981 and worked under respondent No.2 as
walman for continuous period of 240 days on daily wage basis. It is
contended that without conducting any enquiry, contrary to the
principles of natural justice and without even complying of the
statutory requirements of payment of retrenchment compensation,
his services were terminated with effect from 30.8.1982. Since the
termination was illegal, the petitioner filed a claim statement in
Reference No.37/2001 on 10.12.2001.
3. It is contended that the Management who appeared
through a counsel filed statement of objections on 9.4.2002
contending that the petitioner never worked with the respondent and
was never an employee of the respondent. The labour Court
considering the averments made in the claim statement and
objections statement framed following points for his consideration.
NC: 2024:KHC-D:7055
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4. The labour Court on appreciation of the pleadings,
averments and also evidence lead by the parties, answered the point
in the negative and consequently, dismissed the reference. Aggrieved
by the same, the petitioner is before this Court.
5. Learned counsel for the petitioner reiterating the
grounds urged in the memorandum of petition submits that the
finding of facts arrived at by the labour Court is one without
appreciation of evidence on record. He submits that approach of the
labour Court requiring petitioner to prove that he having served for
240 days was erroneous as there is no such legal requirements. On
the point of limitation, he submits that there is no provisions under
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the Industrial Disputes Act, 1947 (for short the Act), which limits or
restricts filing of claim petition/reference application by an aggrieved
workman. Therefore, he submits conclusion arrived by the labour
Court that the reference sought for by the petitioner was barred by
limitation is unsustainable.
6. Learned counsel for the petitioner placed reliance on the
judgment of the Apex Court in the case of State Bank of India V/s.
Shri. Sundara Money reported in (1976) 1 SCC 822, referring to
paragraph 5 of the said judgment learned counsel vehemently
submitted that in the said case, the workman had worked for a
period lesser than one month and yet, the Apex Court had considered
that workman having been worked for 240 days. Thus, he submits
that requirements of workman to render service for 240 days is
neither required nor is a condition precedent.
7. As regards the limitation, learned counsel for the
petitioner relies upon the judgment of the Apex Court in the case of
Kuldeep Singh V/s. G.M. Instrument Design Development and
Facilities Centre and Another, reported in AIR 2011 SC 455 to
contend that it is not open either to the Government at the time of
reference or to the Industrial Tribunal to adjudicate the issue of
limitation once the reference is accepted. Thus, learned counsel
submits that the order passed by the labour court is illegal and
hence, warrants interference at the hands of this Court.
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8. Per contra, learned counsel for the respondent No.1 and
2 submits that the petitioner himself had filed the petition claiming to
have rendered service for 240 days and had miserably failed to
establish the said fact. He relies on the judgment of the Apex Court
in the case of A.G.Chandrappagol V/s. Assistant Executive
Engineer, Ghataprabha Right Bank Canal Construction, Sub-
Division 1, Hidkal, Belgaum District, reported in 2004(2) L.L.N.
675 to contend that delay and latches of the issue requires to
consider in the case of long and unexplained delay, and findings of
the labour Court thereon cannot be interfered with. Hence, he seeks
for dismissal of the petition.
9. Heard and perused the records.
10. Before adverting to the rival submissions, it is relevant
at this juncture to refer Section 25-B of the Act, which defines the
term period and continuous service. In terms of which a workman
employed other than below the ground is deemed to be in continuous
service within the meaning of Clause (1) of Section 25-B of the Act, if
he is in continuous service under an employer for a period of 240
days, in a given year. The said definition of continuous work requires
to be read into the provisions of Section 25-F of the Act, which
prescribes the condition precedents for the retrenchment of a
workman. It contemplates no workman employed in any industry
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who has been continuous service for not less than one year under the
employer shall be retrenched by the employer subject to conditions
prescribed thereunder. In the instance case, there is no material
evidence placed on record by the petitioner workman to justify the
claim that he has worked continuous for a period of 240 days.
11. Reliance is placed by the learned counsel for the
petitioner in the case of Shri.Sundara Money supra is not applicable
to the instance case, inasmuch as in the said case, the very order of
appointment of the workman manifestly referred to the period of
employment and it also specified that appointment was purely
temporary one for a period of one month and could be terminated
earlier subject to 14 days notice. However, that is not the case an
hand. The labour Court, referring to applicable provisions of
Industrial Disputes Act, 1947 namely Section 25-G and 25-F of the
Act referred to hereinabove and on appreciation of evidence came to
conclusion that the petitioner workman had worked only for 57 days
and as such was not entitled for the benefits contemplated under
Section 25-F of the Act. The said facts not having been controverted,
the finding arrived by the labour Court thereon cannot be found fault
with.
12. As regards the issue of limitation, the Apex Court in the
case of Kuldeep Singh supra relied upon by the learned counsel for
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petitioner was on the issue of requirements of reference and
Government cannot decline to make reference from latches
committed by the workman, ' if adequate reasons are shown.' The
Government is bound to refer the dispute to the appropriate court or
forum for adjudication. In the case of A.G.Chandrappagol supra at
paragraph Nos. 9 and 10, the Apex Court has encapsulated the
principles governing issue of limitation in the case of belated
reference of dispute by the workman, which are extracted hereunder:
"9. The following principles emerge from the aforesaid
decisions:
(i) In regard to an 'industrial dispute' between the
employer and workmen in regard to terms of
employment or conditions of labour (other than
deemed industrial disputes relating to individual
workman), normally the claims do not become stale.
But in the case of deemed industrial disputes relating
to termination of individual workman, it is necessary
to examine in every case whether the dispute exists or
has become stale. The appropriate Government should
do it before exercising the power under S. 10(1). The
Labour Court or Industrial Tribunal can also examine it
when considering the reference.
(ii) The Labour Court is not precluded from examining
whether the reference should be rejected on the
ground that the dispute ceased to exist or became
stale on account of long unexplained delay on the part
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of the workman or the union of workmen in raising the
dispute. The mere fact, that the appropriate
Government has made a reference under S. 10 of the
Act does not mean that the 'dispute' exists or is
apprehended. If the Labour Court concludes that the
claim/dispute has become 'stale' or 'ceased to exist',
on account of inordinate delay, the reference can be
rejected on that ground.
(iii) The employer can challenge a reference, on the
ground that there is no 'existing' dispute that could be
referred, by filing a petition under Art. 226. Instead of
filing a writ petition, the employer can also seek
rejection of the reference before the Industrial
Tribunal/Labour Court on the ground of unexplained
delay rendering the claim stale.
(iv) The period of delay to be considered to decide whether
a claim is stale or not, is the period between the date
of alleged termination and the date on which the
process for conciliation/reference is set in motion by
or on behalf of the workman. The period spent in
conciliation and in the process of making the reference
will not be taken into account for determining the
period of delay.
(v) The question whether a dispute or claim has become
'stale' has to be decided by the Industrial
Tribunal/Labour Court with reference to the facts and
circumstances of the case. Any unexplained long delay
will render a claim stale. Where the relationship of
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'employer' and 'employee' is seriously in dispute, or
where there is a dispute as to whether the employee
served for the minimum period required under law for
any purpose, necessitating production of records by
the employer, any delay would make it difficult or
impossible for the employer to let in evidence to
establish the true facts. In such circumstances, the
claim may become stale even by passage of three to
four years.
10. In this case, appellant claimed that he was terminated in
February 1983. From the years 1983 to 1996, he did not make
any request to take him back to duty nor seek to enforce any
remedy. Thirteen years thereafter, for the first time, he made
an application before the Labour Officer seeking conciliation
and reference of the dispute to the Labour Court. Labour Court
found that appellant had not satisfactorily explained the delay.
It is in this background that the reference was rejected by the
Labour Court. At such a distance of time neither the records
nor the persons who dealt with the matter will be available,
particularly in regard to projects undertaken by the department
under different schemes. The dispute had clearly become stale
and the Labour Court rightly rejected the reference. We find no
infirmity in the order of the Labour Court or in the order of the
learned Single Judge confirming the same.
Appeal is therefore dismissed as having no merit".
13. In the instance case, the petitioner workman claimed to
have been terminated from service on 30.8.1982 and he wakes up
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only in the year 2001. Though the Government had referred the
matter to labour Court as noted above, the labour Court is not
precluded from addressing the issue of limitation, that too, if it is
inordinate without accompanied by any explanation whatsoever.
14. For the foregoing reasons and analysis, this Court does
not find any reason warranting interference in the order passed by
the labour Court.
Accordingly, the writ petition stands dismissed.
SD/-
JUDGE
VB/CT-ASC
