Karnataka High Court
Sri. R. Cheluvaraj vs M/S Handiman Services Ltd on 27 February, 2025
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WP No. 12254 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 12254 OF 2013 (L-RES)
BETWEEN:
SRI R. CHELUVARAJ,
AGED ABOUT 41 YEARS,
S/O LATE S RAMAIAH,
C/O SMT. GOWRAMMA,
NO. 38, 4TH CROSS,
OPP: D M PUBLIC SCHOOL,
RAJESHWARINAGAR,
LAGGERE, BANGALORE-560058.
...PETITIONER
(BY SRI D PRABHAKAR, ADVOCATE)
AND:
M/S HANDIMAN SERVICES LTD.,
NO.3, 15TH CROSS,
KOLANDAPPA GARDEN,
Digitally GAJENDRANAGAR, ANEPALYA
signed by C AUDUGODI POST,
HONNUR
SAB BANGALORE-560030.
Location: ...RESPONDENT
HIGH COURT (RESPONDENT SERVED AND UNREPRESENTED)
OF THIS WRIT PETITION IS FILED UNDER ARTICLES 226
KARNATAKA AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR THE RECORDS ON THE FILE OF THE PRESIDING OFFICER,
2NDADDL. LABOUR COUT AT BANGALORE, IN REF.NO.15/09.
QUASH THE IMPUGNED AWARD DT.30.11.11 PASSED IN
REF.NO.15/09 BY THE 2ND ADDL. LABOUR COUT AT
BANGALORE, AT ANNX-D AND ETC.
THIS PETITION COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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WP No. 12254 of 2013
CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
ORAL ORDER
This petition is arising from the award dated 30.11.2011
in Ref.No.15/2009 on the file of II Additional Labour Court,
Bengaluru. The petitioner was admittedly a workman of
respondent, raised an industrial dispute on the premise that the
employment was denied to him without holding any disciplinary
enquiry. The said reference is rejected in terms of
aforementioned award. Hence, the petitioner is before this
Court assailing the award.
2. Respondent though served is not represented.
3. Heard the learned counsel appearing for the
petitioner and perused the records.
4. Learned counsel appearing for the petitioner inviting
the attention of this Court to the pleadings before the Labour
Court as well as the documentary evidence and oral evidence
placed before the Labour Court would contend that the
petitioner was working as a driver under the respondent. The
fact that he was working as driver is admitted. The petitioner
has worked from 17.09.2004 till 02.04.2008 and thereafter, he
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was denied employment without assigning any reasons. He
would contend that the respondent disputed the petitioner's
claim and he filed statement of objections only after closure of
evidence by the petitioner and in the statement of objections,
he has taken a defence that the petitioner refused to work after
deputation. The contention that order of deputation can be
questioned only under Section 2(k) of the Industrial Disputes
Act, 1947 (hereinafter referred to as 'Act' for short) and it
cannot be raised as a dispute under Section 10(1)(c) of the Act
is an afterthought and same is not established, is the
submission.
5. It is urged by the learned counsel for the petitioner
that the documents evidencing the alleged deputation are not
established as the said documents do not bear the petitioner's
signature.
6. Defence statement was filed by the respondent
after the closure of evidence by the petitioner and the
documents produced to establish the contention that the
petitioner was deputed to Hyderabad do not bear the signature
of the petitioner. On the other hand, the very defence that the
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petitioner was deputed to Hyderabad would establish the fact
that the petitioner was an employee of the respondent, is the
contention on behalf of the petitioner.
7. It is also urged that on 01.04.2008, the petitioner
had taken the vehicle of the respondent to service station and
the same is established from Ex.W11 which is the job card
issued by Mandovi Motors Private Limited. Thus, he would
contend that the petitioner did work on 01.04.2008 for the
respondent and Ex.W12 which is the invoice and the cash
receipt dated 02.04.2008, also reveal that the petitioner did
work on 02.04.2008 as well. Thus, he would contend the fact
that petitioner worked for the respondent till 02.04.2008 is
very much established. Since the deputation as contended by
respondent is not established, the Labour Court erred in
rejecting the claim of the petitioner and the petitioner has not
established his claim.
8. This Court has considered the contentions raised at
Bar and perused the records.
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9. From the contentions raised before the Labour
Court and the materials placed on record, it is evident that the
petitioner was employee of the respondent.
10. The question as to whether the petitioner was
allowed to work after 02.04.2008 or whether the petitioner on
his own, refused to work objecting deputation as contended by
the respondent.
11. The petitioner has produced the records to show
that on 31.03.2008, he has worked for the respondent. The
job card which is produced by the petitioner is the proof the
fact that the petitioner has taken the vehicle to the Mandovi
Motors on 01.04.2008 and on 02.04.2008, the payment is
made and the petitioner has produced the receipt. The job
card and the receipt issued are produced from petitioner's
custody. This would indicate the fact that the petitioner was at
Mandovi Motors on 01.04.2008 and as well as on 02.04.2008.
These documents are not seriously disputed. Apart from that
the respondent is not able to establish that the order of
deputation is served on the petitioner and the petitioner
refused to go to Hyderabad.
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12. Assuming that the petitioner has denied the order
of deputation, there would have been notices calling upon the
petitioner to join the service. In case of unauthorized absence,
nothing prevented the respondent from issuing notice to the
petitioner calling upon him to join the service or to hold
disciplinary enquiry on account of misconduct alleging
unauthorized absence. No such proceeding is also initiated
against the petitioner.
13. These circumstances would clearly suggest that the
petitioner was working with the respondent till 02.04.2008.
Unfortunately, the Labour Court has not considered the
documents produced by the petitioner in this regard in a proper
perspective. The Labour Court has not assigned valid and
acceptable reasons for not accepting Exs.W11 and W12
produced by the petitioner. Though the Labour Court has held
that the burden is on the petitioner to establish his case, the
materials placed on record by the petitioner clearly establish
that he work for respondent and the burden is on the
respondent to establish that the petitioner refused the work.
The defence statement filed by the respondent after the closure
of petitioner's evidence appears to be an afterthought defence.
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14. For the reasons stated above, this Court is of the
view that the petitioner has established that the employment
was denied to him without there being any cause.
15. The petitioner had prayed for re-instatement and
payment of back wages. Before this Court the petitioner has
produced the medical records to show that he is not in a
position to work. The documents indicate that he is suffering
from cancer. Thus, the prayer for re-instatement is not
sustainable. It is also relevant to note that the petitioner was
aged 37 years in the year 2007, and now he is aged 53 years.
16. Under these circumstances, this Court is of the view
that the in lieu of prayer for reinstatement, it would be
appropriate to award compensation for illegal termination.
17. It is stated that the petitioner is having a salary of
Rs.5,950/- per month. The records would reveal that petitioner
was diagnosed for cancer in the year 2018.
18. Under these circumstances, this Court has to hold
that the petitioner can claim benefits treating his year of
retirement as 2021.
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19. Learned counsel for the petitioner has also relied on
the judgment of the Apex Court in the case of Rajkumar vs
Director of Education And Ors. and prays for suitable
compensation.
20. Considering the fact that the petitioner was denied
employment without any basis and without any enquiry, this
Court is of the view that petitioner is entitled to backwages up
to the year 2021. With effect from 01.01.2022, the petitioner
should be treated as voluntarily opted for retirement on
account of illness. Hence, the following:-
ORDER
i) The writ petition is allowed.
ii) The impugned award dated 30.11.2011 in Ref.
No.15/2009 on the file of II Additional Labour
Court, Bengaluru is set-aside.
iii) The petitioner should be treated as reinstated with
effect from 03.04.2008 till 31.12.2021.
iv) The petitioner is also entitled to full backwages for
the said period.
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v) The petitioner is entitled to all consequential
benefits.
vi) All benefits shall be paid within 45 days from the
date of receipt of this order, failing which, the
amount payable shall carry interest @ 7% per
annum from the date of this order till payment.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
BRN
