Karnataka High Court
Insepctor Of Sericulture vs Karaniyamma on 3 September, 2024
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WP No. 35581 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.35581 OF 2015 (L-TER)
BETWEEN:
1. INSPECTOR OF SERICULTURE,
GOVERNMENT OF SERICULTURE,
BETHANE CELL, K.R. NAGAR,
2. THE ASST. DIRECTOR,
SERICULTURE, K.R.NAGAR,
MYSORE DISTRICT.
3. PRINCIPAL SECRETARY,
GOVERNMENT OF KARNATAKA,
AGRICULTURE AND HORTICULTURE
DEPARTMENT, VIKAS SOUDHA,
BANGALORE. ... PETITIONERS
(BY SMT. RASHMI RAO, HCGP)
AND:
KARANIYAMMA,
Digitally signed by W/O K.R.MAGALI,
MAHALAKSHMI B M
Location: HIGH
AGE 52 YEARS,
COURT OF SWEEPER COLONY,
KARNATAKA NO.5/99, 5TH WARD,
K.R.NAGAR, MYSORE DISTRICT - 571 602. ... RESPONDENT
(BY SRI.LAKSHMIKANTH K., ADVOCATE FOR
SRI. VIJAYA KUMAR S., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 30.09.2013 PASSED BY LABOUR
COURT, MYSORE IN I.I.D. NO.08/2012 AS PER ANNEXURE-A AND
ETC.,
THIS WRIT PETITION COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
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WP No. 35581 of 2015
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL ORDER
Assailing the legality and correctness of the judgment
and award dated 30.09.2013 passed in I.I.D. No.8/2012
on the file of the Labour Court at Mysore (hereinafter
referred to as the 'Labour Court' for brevity), the Inspector
of Sericulture, Government Sericulture, is before this Court
in this writ petition.
2. The petitioner is referred to as 'establishment'
and the respondent as 'workman' for the sake of
convenience.
3. Petition under Section 10(4-A) of the Industrial
Disputes Act, 1947 ('the ID Act' for short) was filed by the
workman directing the establishment to reinstate her into
service with continuity of service and payment of full back
wages from the date of refusal of employment dated
31.12.2011 till the date of her reinstatement into service
with all consequential benefits. The averments made in
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the claim petition is that the workman was appointed as a
Sweeper on daily wages in the year 1983, it is the case of
the workman that the petitioner had denied the minimum
wages and she had approached the Minimum Wages
Authority directing the establishment to pay a sum of
Rs.1,34,806/-, being the difference in the minimum wages
for the period from 01.04.2003 to 31.12.2007 on
18.08.2011, the establishment did not comply with the
order passed by the authority which made the workman to
approach the Court seeking recovery of the said amount.
It is averred in the claim statement that in the meantime,
the establishment illegally terminated the workman from
service on 31.12.2011, without issuing any notice nor paid
any compensation and the mandatory requirement as
required under Section 25F of the ID Act has not been
complied by the establishment, as she has worked for
more than 240 days continuously in every year till she was
denied employment by the State.
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4. On notice, the counter was filed by the
establishment contending that she was not appointed as a
sweeper and was working as a daily wager, she attended
to sweeping work only two days in a week and that she
has not put in 240 days of continuous service and there
are no materials produced by her to show her continuous
service for 240 days in a year. Further, the Sericulture
Department is a government department which does not
discharge sovereign functions of the State and as such, it
is not an industry as defined under the ID Act, that there
is no relationship of an employer and employee between
them.
5. The Labour Court by the impugned order held
that the workman has worked in the establishment for
more than 240 days in a year and the establishment has
not complied with Section 25F of the ID Act, and by the
impugned order allowed the petition in part and the action
on the part of the establishment in refusing employment
to the workman on 31.12.2011 was set aside and was
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directed to reinstate the workman into service to the post
last held by her with 50% back wages from the date of
termination till the date of reinstatement with continuity of
service and other consequential benefits.
6. Heard the learned High Court Government
Pleader for the petitioner-State and learned counsel
appearing for the respondent-workman.
7. It is submitted that the respondent-workman
was taken on a temporary basis for a limited period and
that the workman has not worked continuously for 240
days in a year and thus, the question of invoking the
provisions of Section 25F of the ID Act would not arise. It
is contended that the respondent has stopped attending
her work and there is no termination by the petitioner.
8. Per contra, the learned counsel appearing for
the workman justifies the order passed by the Labour
Court and submits that the workman has worked in the
establishment for continuous period during the preceded
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12 months on daily wages and the same has been rightly
considered by the Labour Court while passing the order of
reinstatement which warrants no interference.
9. Having heard the learned counsel for the
parties, the point that arises for consideration is,
"Whether the judgment and award of the
Labour Court warrants any interference in the
present facts and circumstances of the case?"
10. The grievance of the workman before the
Labour Court was that the service of the workman, though
employed on a daily wage basis, she has been in
continuous service for 240 days and the termination of the
workman from service is without compliance of Section
25F of the ID Act. Section 25F of the ID Act reads as
under:
"25F. Conditions precedent to
retrenchment of workmen.--No workman
employed in any industry who has been in
continuous service for not less than one year under
an employer shall be retrenched by that employer
until--
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(a) the workman has been given one
month's notice in writing indicating the reasons for
retrenchment and the period of notice has expired,
or the workman has been paid in lieu of such
notice, wages for the period of the notice;
(b) the workman has been paid, at the time
of retrenchment, compensation which shall be
equivalent to fifteen days' average pay for every
completed year of continuous service or any part
thereof in excess of six months; and
(c) notice in the prescribed manner is
served on the appropriate Government or such
authority as may be specified by the appropriate
Government by notification in the Official Gazette."
11. Section 25B of the ID Act defines 'continuous
service', Section 25B envisages that a workman shall be
said to be in continuous service for a period if he is, for
that period, in uninterrupted service, including service
which may be uninterrupted on account of sickness or
authorized leave or an accident or a strike which is not
illegal, or a lock-out or a cessation of work which is not
due to any fault on the part of the workman and further
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where a workman is not in continuous service within the
meaning of clause (1) for a period of one year or six
months, he shall be deemed to be in continuous service
under an employer -for a period of one year, if he, during
the period of 12 calendar months preceding the date of
termination, has actually worked under the employer for
not less than 240 days.
12. The service of the workman employed on a
daily wage basis was terminated. The workman deposed
that she had worked for 240 days during the preceding 12
months on a daily wage basis, the material on record
would indicate that she has put in continuous service and
the wages were paid by the establishment. As the
workman would have difficulty in having access to all the
official documents, muster rolls, etc., in connection with
her service, the workman having contended that she has
put in service and has completed 240 days, the burden
shifts on the employer to prove that the workman has not
completed 240 days during the preceding 12 months.
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There are no materials forthcoming to indicate that the
workman had not completed 240 days during the
preceding 12 months and the burden which was on the
employer has not been discharged.
13. The Labour Court arrived at a conclusion that
the workman has proved that she has worked as a
sweeper for 240 days and the nature of work restricted to
the workman is severable from the sovereign functions of
the State and the establishment has to be treated as an
"industry" by looking into the nature of work entrusted to
the workman and the relationship of employer and
employee being established and the workman having
worked more than 240 days in a calendar year, the
establishment ought to have complied with Section 25F of
the ID Act prior to terminating the service of the workman
and the non-compliance of Section 25F of the ID Act
renders the termination illegal.
14. As stated supra, the workman having
completed 240 days of continuous service under the
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employer, the establishment could not have retrenched
the workman without complying with Section 25F of the ID
Act and the point framed for consideration is answered
against the petitioner and this Court pass the following:
ORDER
i. The writ petition is dismissed.
ii. The impugned order passed by the Labour Court
stands confirmed.
Sd/-
(K.S. HEMALEKHA)
JUDGE
YKL
